The Court of Appeal held that, following Mann v Paterson, the contractual price for a divisible stage of a building contract operates as a cap on the amount recoverable in quantum meruit for partially completed work, but does not replace the fundamental inquiry into the fair and reasonable value of the work actually done; accordingly, a builder cannot value a quantum meruit claim by simply deducting the cost of completing a stage from the stage price, as that would impermissibly equate quantum meruit with expectation damages. The Court also held that the Tribunal's power under s 53 of the Domestic Building Contracts Act 1995 to make restitutionary orders is constrained by s 40(2), such that a builder cannot retain amounts paid under a void side agreement that contravened the statutory payment regime, and a defence based on value received for work done is inconsistent with the statutory prohibition. On the jurisdictional question, the Court held that a challenge to a tribunal's finding that a contract was validly terminated will generally not constitute an appeal 'on a question of law' under s 148 of the VCAT Act where it requires the court to re-determine factual or mixed questions.
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