JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION : ABB POWER GENERATION LTD -v- CHAPPLE & ORS [2001] WASCA 412
CORAM : MURRAY J
HEARD : 15 OCTOBER 2001
DELIVERED : 14 DECEMBER 2001
FILE NO/S : FUL 21 of 2001
BETWEEN : ABB POWER GENERATION LTD (ACN 000 038 237)
Appellant (Second Defendant)
AND
RAYMOND WILLIAM CHAPPLE
JOAN NATASHA CHAPPLE
First Respondents (Plaintiffs)
CIS CONTRACTING PTY LTD (ACN 070 228 563)
Second Respondent (First Defendant)
Catchwords:
Restitution - Principles governing grant of relief - Services performed at request of defendant additional to contractual obligations - Nature of benefit - Acceptance of benefit - Reasonable expectation of payment
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Legislation:
Nil
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant (Second Defendant) : Mr J A Chaney SC
First Respondents (Plaintiffs) : Mr M L Bennett
Second Respondent (First Defendant) : No appearance
Solicitors:
Appellant (Second Defendant) : Minter Ellison
First Respondents (Plaintiffs) : Bennett & Co
Second Respondent (First Defendant) : No appearance
Case(s) referred to in judgment(s):
Angelopoulos v Sabatino (1995) 65 SASR 1
ANZ Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662
Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Kais v Turvey (1994) 11 WAR 357
Muschinski v Dodds (1985) 160 CLR 583
Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221
Case(s) also cited:
Angelopoulos & Anor v Sabahno & Anor (1995) 65 SASR 1
Dare v Pulham (1982) 148 CLR 658
Sabemo Pty Ltd v North Sydney Municipal Council [1997] 2 NSWLR 880
Water Board v Moustakas (1988) 180 CLR 491
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1 MURRAY J:
The facts
2 The following account is taken from the findings of the trial Judge Deane DCJ. Cockburn Cement contracted for the construction of a piece of industrial equipment known as an electrostatic precipitator at premises in Spearwood. The company engaged to oversee the project as a whole, of which the precipitator was part, entered into a contract with the appellant ("ABB") to supply the precipitator. ABB subcontracted with the second respondent ("CIS") to clad the precipitator with insulating lagging. To carry out that work, CIS needed to have the precipitator, when erected, surrounded by scaffolding. The first respondents carried on the business of scaffolders in partnership under the business name Fremantle Scaffolding. Mr Chapple was effectively the proprietor of the business. The quote by Fremantle Scaffolding to supply and erect the scaffolding was accepted by CIS and they made an allowance for that cost component in their contract with ABB.
3 The difficulty appears to be that the whole project was one which the various contractors and subcontractors were asked to accelerate. As I understand it, the design drawings for various elements of the project were not complete when the various contractual arrangements were entered into and quotes for the work were submitted. General plot plans for the precipitator and its layout were available, but no drawings to show particular items associated with the precipitator, including particularly pipe racks and cable trays, were available. Fremantle Scaffolding prepared their quote without allowing for these items. The nature of the precipitator as constructed, without allowing for such associated works and protrusions, enabled the quote to be prepared upon the basis of the use of modular scaffolding which comes in standard sizes and fittings and is much cheaper and more expeditious to erect.
4 Where it cannot be used, the much slower and more expensive process involves tubular scaffolding fitted to accommodate the structure upon which the work is to be done. This expense had not been allowed for and nor had the requirement of ABB, notified later to Fremantle Scaffolding, to design and build a crane entry into the body of the precipitator to allow certain work to be done inside the perimeter of the precipitator in the course of its construction. There had been, prior to embarking upon the job, no indication to Fremantle Scaffolding that that would be required.
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5 Further, as the scaffolding was erected while making allowances for these unexpected elements of the construction of the precipitator, it was discovered that the effect was to require special and additional work to be done to pick up the scaffolding over the top of the crane entry and to link the four walls of scaffolding so as to completely enclose the precipitator once constructed. This required the construction of four links in the scaffolding known as cross-over bridges, again incurring extra costs in materials and labour made necessary by the incapacity to link all around the precipitator the various elements of modular scaffolding which were used.
The nature of the litigation
6 It is sufficient to describe the litigation very broadly for present purposes. Fremantle Scaffolding sued to recover the additional costs incurred in performing the extra work. The claim against CIS was essentially in contract, or alternatively, upon a quantum meruit. Again putting its case very broadly, CIS defended that claim upon the basis that all the work reasonably and necessarily performed was part of the contract to be remunerated under the contract price. CIS said that if Fremantle Scaffolding incurred extra cost in performing the work over and above their quote, then it was as a result of their failure to carry out their work competently, and CIS counterclaimed for breaches of implied terms of the scaffolding contract, as a result of which it contended that it had incurred additional expense, in fact exceeding certain amounts which CIS conceded was owed to Fremantle Scaffolding for extra work. Fremantle Scaffolding's claim against CIS was, as I understand it, for extra work not within the contract, ordered without the involvement of ABB. In the event, the claim against CIS succeeded and its counterclaim was dismissed. The legal and factual issues raised by that particular aspect of the litigation are not the subject of this appeal.
7 The claim of Fremantle Scaffolding against ABB, with whom they had no direct contractual relationship, was based entirely upon a quantum meruit in respect of the work, additional to that involved in the original contract, requested to be performed by ABB alone or jointly with CIS. I note at this point that Mr Chapple acted for Fremantle Scaffolding. ABB was represented by its site manager in respect of the construction of the precipitator, a Mr Campbell, and CIS, the subcontractor in relation to the insulation of the precipitator, was represented by a Mr Thomson.
8 Deane J allowed the claim by Fremantle Scaffolding against ABB in respect of disputed items in a Scott Schedule derived from Schedule B to
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the amended statement of claim. Four items related to the cross-over bridges at the corners of the box-like structure created by the erected scaffolding and one was a set of lifts associated with these items at one corner of the scaffolding. The final item was additional construction of scaffolding at one end of the precipitator evase due to the alterations to the original design made to provide for the crane entry, to which I have referred. Fremantle Scaffolding obtained judgment against ABB for a sum assessed by her Honour to be the reasonable cost of carrying out that work, together with interest. It is from that judgment that this appeal is brought. ABB contends that the claim by Fremantle Scaffolding should have been dismissed. It contends that the claims for which it was held liable, if the cost of carrying out the work was recoverable at all, should have been made against CIS under the contract between CIS and Fremantle Scaffolding.
The principles of restitution
9 There being no contractual relationship between Fremantle Scaffolding and ABB, the claim against ABB, it was accepted at trial, depended upon the application to the facts found by Deane J of the principles of the law of restitution, a no doubt developing, although certainly firmly established, area of the law (at least since the High Court decided what must be regarded as the leading case on the subject; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221).
10 The law in this regard, it is settled, will encompass a claim for reasonable compensation to be paid to a plaintiff who has supplied materials to, done work for or otherwise benefited a defendant who has accepted the benefit upon the understanding that the plaintiff would be paid for the service rendered. Reasonable compensation is recoverable, hence the often made, but unnecessary, reference to an award of compensation based on a quantum meruit.
11 It is clear that in this area of the law the obligation to pay reasonable compensation for the non-monetary benefit accepted by the defendant does not depend at all upon the law of contract or quasi-contract, but is an obligation independently imposed by the law in circumstances where to accept and retain the benefit of the service provided by the plaintiff may be seen to result in the unjust enrichment of the defendant. As I understand the law, if that is the situation, then liability will follow unless the defendant, who ought reasonably to have understood that the plaintiff would expect to be paid for the services provided, rejected them when they were proffered.
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12 Pavey was a case where the appellant was a building contractor. It carried out some work to renovate a cottage for Mr Paul. There was an oral agreement that Paul would pay a reasonable remuneration for the work done. The work was done, Paul took occupation of the cottage. Some payment was made but Paul denied any obligation to pay a balance claimed by the builder as being reasonable remuneration. The contract was unenforceable under the Builders Licensing Act of NSW because it was not in writing, but it was held that this did not preclude a claim upon a quantum meruit independently of any contractual obligation, the claim being based upon the principles of restitution for unjust enrichment.
13 At 227 - 8, Mason and Wilson JJ rested the capacity to recover squarely upon these principles, the unjust enrichment "arising from the respondent's acceptance of the benefits accruing to the respondent from the appellant's performance of the unenforceable oral contract." Their Honours went on to observe that it would be insufficient to simply prove the performance of the work. The plaintiff would also have to establish "the defendant's acceptance of the work without paying the agreed remuneration". In Pavey of course, there were only the two parties involved and so the plaintiff would seek to establish that it expected to be paid by the defendant for whom the work was performed and who accepted the benefit of it.
14 Deane J, in a typically scholarly judgment, traced the history of the development of the law in this regard before reaching the like conclusion that the true foundation of the capacity to make restitution in such a case was not the implication of agreement where the facts allowed no room for such a conclusion, but the concept of unjust enrichment. At 257 his Honour tied that concept, in this type of case, into the equitable notion of unjust enrichment underpinning the remedy of the declaration of a resulting or constructive trust, an area of the law which his Honour had then recently been instrumental in elucidating in Muschinski v Dodds (1985) 160 CLR 583, 619 - 20. And so in Pavey, his Honour was led to conclude at 256 - 7 that:
"To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate. … That is not to deny the importance of the concept of unjust enrichment in the law of this country. It constitutes a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit
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derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case."
15 His Honour concluded that, "the law recognises an obligation to pay a reasonable remuneration or compensation for a benefit actually or constructively accepted." It will be noted that his Honour does not in that passage directly link the obligation to pay to any subjective or objective expectation that the benefit should not be accepted without payment. But what is necessary is the capacity to discern in the facts of the case that the defendant did receive a benefit, that he accepted it and did not reject it, and that in all the circumstances it would be unfair or unjust that the plaintiff should be left without reasonable recompense for the work done. In this category of case, as in the case of the declaration of a constructive trust, the actual intentions or expectations of the parties cannot be determinative of whether the law will provide a remedy by way of restitution: cf in the context of the law of constructive trusts, Kais v Turvey (1994) 11 WAR 357.
16 The fundamental nature of the equitable notion of unjust enrichment or unconscionability as a concept grounding a liability to make restitution in a variety of factual circumstances, was made manifest by the decision of the High Court in ANZ Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 where the action was brought to recover moneys paid under a mistake of fact. At 673 their Honours said:
"The basis of the common law action of money had and received for recovery of an amount paid under fundamental mistake of fact should now be recognised as lying not in implied contract but in restitution or unjust enrichment. In other words receipt of a payment which has been made under a fundamental mistake is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution, in the sense of compensation for the benefit of unjust enrichment, to the person who has sustained the countervailing detriment. The common law right of action may arise in circumstances which also give rise to a resulting trust of specific property or funds or which would lead a modern court to grant relief by way of constructive trust. However, notwithstanding that the grounds of the action for recovery are framed in the traditional words of trust or use and that contemporary legal principles of restitution or unjust
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enrichment can be equated with seminal equitable notions of good conscience, the action itself is not for the enforcement of a trust or for tracing or the recovery of specific money or property. It is a common law action for recovery of the value of the unjust enrichment …"
17 In that type of case the injustice arises out of the receipt of the benefit of payment in circumstances of fundamental mistake. No more is required, but the conclusion of unjust enrichment will be negated if the payee was unaware of the mistake or believed himself to be entitled to receive the money and adversely altered his position in reliance upon its receipt: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
18 I do not of course intend this summary to be a comprehensive statement of the law of restitution on the ground of unjust enrichment. I shall have to return to some of the concepts involved later in these reasons, but for the moment the point I wish to make is that the basic concept provides a capacity for the law, by drawing on principles of the common law and equity, to provide compensation to a plaintiff in a case where, at the plaintiff's expense in a material sense, the defendant has been provided with and has accepted a benefit of a material kind which, in the circumstances of the case, it would be unjust to permit the defendant to receive without making reasonable recompense to the plaintiff for it. A variety of factual situations will give rise to the obligation but, in my opinion, a classic example of the application of these principles arises in circumstances where the benefit has been provided and taken outside the ambit of a contractual relationship but nonetheless in a commercial context where the plaintiff can be seen to be more than a mere volunteer.
The appeal: Grounds 1 and 2
19 By the first two grounds of appeal ABB alleges error, not in the statement by Deane DCJ in broad terms of the applicable principles, but in her Honour's application of them to the particular case. As I understand the argument, the proposition is that ABB should not be regarded as having accepted and received a benefit arising out of the services provided by Fremantle Scaffolding outside the ambit of the contracts, which it would be unconscionable or unjust to retain, because there was in fact no expectation that payment of a reasonable amount for the work done would be made by ABB. In my opinion, however, to state the proposition in that way will not inevitably give rise to a defence to a claim for restitution.
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20 As the judgments of the majority in Pavey make clear, what is a "benefit" in the hands of the defendant must be judged objectively from the position of the defendant. There is no need for the benefit to be purely of an economic kind or one which is capable of being reduced to a monetary value. A requested or accepted service will generally be accepted by the Court as being of benefit to the defendant and will certainly prevent the plaintiff from being regarded as a mere volunteer, providing services in effect as a gift: see also Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 per Byrne J at 257 - 9.
21 As to the expectation of payment to the plaintiff, there is nothing in the authorities necessarily to require a reasonable expectation of payment by the defendant who has received the benefit and upon whom it is sought to impose the obligation to make restitution. In Brenner, Byrne J stated the general principle at 260 as follows:
"I think that the Court is not concerned with the actual state of mind of the parties or of either of them. Moreover, the enquiry must, in my view, be principally directed to the position of the party to be charged, for the thread running through this area of law is the injustice of the enrichment of that party. In my opinion the appropriate enquiry is whether the recipient of the services, as a reasonable person, should have realised that a person in the position of the provider of the services would expect to be paid for them and did not take a reasonable opportunity to reject those services. Where the services are provided under a contract which turns out to be void or otherwise ineffective or pursuant to a request made in a normal commercial relationship with a person whose business it is to provide those services for reward, this requirement will be satisfied."
22 At 261 his Honour adverted to the circumstances of the particular case before him and concluded that in those circumstances, if "it was not in the contemplation of the defendant as a reasonable man that the plaintiffs realised that he would be responsible for payment, then the claim against him in respect of those services must fail." But that is not to detract from the principle. It is merely an observation upon the particular facts of the case before the Court.
23 We were referred to the reference to that passage by Doyle CJ, with whom Duggan and Nyland JJ agreed, in Angelopoulos v Sabatino (1995) 65 SASR 1 at 11. But again, the statement of principle by his Honour was
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not so narrowly expressed and the reference to a reasonable expectation that the defendant from whom the restitution is sought would pay is, in my view, again a reference to a particular factual circumstance which in that case related to the question whether it would be unjust for the defendant to receive the benefit without payment.
24 In my opinion, grounds 1 and 2 are not made out.
The findings of fact relevant to the claim
25 Deane J did conclude that the extra work involved in erecting the scaffolding did confer a material benefit on ABB outside the scope of the work which was originally in contemplation and which was properly to be regarded as the subject matter of the contract between Fremantle Scaffolding and CIS. It was work done at the expense of Fremantle Scaffolding for which it expected to be paid, albeit not by ABB, because at one time, as her Honour found, Mr Campbell for ABB told Mr Chapple for Fremantle Scaffolding that as his contract was with CIS, he should look to that entity to follow up his concern that he be paid for the extra work, a concern which, according to her Honour's finding, he made abundantly clear to both Mr Campbell for ABB and Mr Thomson for CIS.
26 Her Honour found that ABB was under pressure to "fast track" the work and it passed on the direction that that should occur to those who were working on the project further down the line. The performance of the scaffolding work, including the extras required, conferred a benefit upon ABB by enabling it "to fulfil obligations to other parties with whom it was dealing relevant to the project". As to the circumstances in which that occurred so far as ABB was concerned, Deane J accepted not only the evidence of Mr Chapple but also that of the scaffolder who seems to have been a senior person on site employed by Fremantle Scaffolding, a Mr Rogan. Her Honour accepted his evidence that when discussions were occurring with respect to the need to establish the crane entry and the consequential difficulty that would be encountered when the scaffolders reached the evase area above the crane entry on the southern side of the precipitator, Rogan told Campbell that the extra work required was not part of the contract. The response was "Well, Frank, we must have it in, regardless." Thomson's response was worded similarly. Their approach was to get the scaffolding done and sort out questions of payment later. Their attitude was similar with respect to the cross-over bridges and associated lifts. In the end, although Thomson gave evidence, Campbell did not.
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27 The other evidence on the topic of the extra work required by ABB of Fremantle Scaffolding was that given by a Mr Rolfe, the project manager on site. Her Honour accepted him as a reliable witness and her conclusions were summarised in this way:
"… that Mr Chapple, on raising his concerns [about the extra work ordered and payment for it] was advised by either Mr Campbell or Mr Thomson or both of them in the presence of each other that in effect he should not worry about the costs but rather concentrate on doing the job at hand and finishing it, on the understanding that Mr Chapple would be paid for the work he was requested to do."
28 Her Honour added the observation:
"On the whole of the evidence, in my view it is clear that [ABB] in a number of instances received the benefit of certain scaffolding work being modified and delayed in order to suit its agreement with other contractors on site and that [Fremantle Scaffolding's] cooperation with [ABB] in this regard was on the understanding that additional costs incurred as a result would be met. I consider that a basis for a claim of quantum meruit by [Fremantle Scaffolding] against [ABB] has been established as the necessary criteria have been met."
29 On the basis of that finding, and having regard to the law as I have set it out above, I can do no more than express my agreement with her Honour.
Some specific aspects of the claim by Fremantle Scaffolding
30 The remaining grounds of appeal are concerned with the specific items of work which were claimed as extra work not covered by any contract, of which ABB accepted the benefit at the expense of Fremantle Scaffolding in circumstances which would make it unjust that Fremantle Scaffolding should not be reasonably remunerated for the work involved. Having regard to the way in which the grounds are framed, I have of necessity had to spend some time perusing the evidence and considering her Honour's specific findings against the background of the evidence as she accepted it. I do not propose to deal with that material in these already over-long reasons. But it is necessary that I express my view about the essential aspects of the various grounds.
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31 Grounds 3, 4 and 7 I will take together. They respectively concern the cross-over bridges and associated scaffolding lifts. I put aside the fact that there are some matters which are identified in the grounds as findings made by the trial Judge when in fact all her Honour was doing at the point of her judgment which is identified was reviewing the evidence and the contentions of the parties. The essence of these grounds is that Deane J erred by failing to conclude that because she did not find an express request by ABB to do the work which was in fact done, the claim for restitution should fail upon the ground that ABB could not be found to have actively accepted the benefit of the services performed by way of additional work on the scaffolding and if it was open, contrary to these contentions, to reach a conclusion of liability against ABB, then to do so relied upon a basis of liability which was not pleaded by Fremantle Scaffolding nor relied upon at trial.
32 As I have endeavoured to show, her Honour's conclusion was that there was in fact discussion about the need to modify the scaffolding to include additional elements beyond those for which Fremantle Scaffolding had contracted. It was in general terms that matters such as pipe racks, cable trays, concrete footings, the evase and the like, although not known or anticipated by Fremantle Scaffolding when the contract was entered into, needed to be accommodated and it was the responsibility of Fremantle Scaffolding to deliver the final result of a workable scaffolding from which the workers of CIS could perform their contractual obligations.
33 As the work proceeded and the need to modify and do additional work on the scaffolding emerged, it was brought to the notice of ABB and the benefit of the work was accepted in fact, because there was no rejection of the notion that the work should be done and Fremantle Scaffolding should be remunerated for it. As I have said, none of the cases proceed upon the basis that an express request to do particular work is a fact necessary to be established if it is to be held that the defendant has accepted the benefit of services provided in circumstances which make it unjust that the plaintiff should not be remunerated.
34 So far as the pleading point is concerned, it was certainly pleaded in the statement of claim that ABB, through Mr Campbell, "requested [Fremantle Scaffolding] to do additional work, provide additional materials and allow for increased time for materials on site." Particulars of "such requests" were set out in schedules, and further and better particulars of the statement of claim show that what was being talked of were the site meetings and other discussions to which I have referred in
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general terms, where Mr Chapple raised concerns about having to do work outside the ambit of the contract and concerns about remuneration and Messrs Campbell and Thomson for their respective interests put to Chapple that the responsibility of Fremantle Scaffolding was to do whatever work was required to effectively complete its obligation, accommodating the changes and additional work elements which had emerged, leaving to a later date decisions about how Fremantle Scaffolding was to be remunerated. Mr Campbell's involvement in that process was pleaded.
35 In my opinion, the evidence led at trial, particularly on behalf of Fremantle Scaffolding, did not materially depart from the way in which the case had been pleaded or lead the trial to take a course which caused any injustice to or difficulty for ABB. The conclusion of Deane J as to the factual basis for ABB's liability did not, in my opinion, depart from the way the case had been pleaded and fought at trial.
36 Grounds 5 and 6 are expressed in similar terms in respect of the additional work involved in the requirement to allow for a crane entry at the southern end of the precipitator and additional scaffolding in respect of an evase in that area. To my mind, the evidence amply supported the conclusion that it was ABB who requested the extra work of establishing the crane entry to enable a hopper to be installed within the precipitator. In the meantime, the construction of the scaffolding needed to proceed in a form which would accommodate this additional element, including extra work at the top of the southern end of the precipitator evase. It was, in my opinion, clearly appreciated that extra work would be required and that Fremantle Scaffolding expected to be paid for it. Precisely what the nature of that work was was a matter for the scaffolders. A change to the more expensive and time-consuming fitting of tubular scaffolding individually constructed, rather than in modules, was required.
37 The point was that Fremantle Scaffolding was required to continue with and complete the construction, incorporating at the request of Mr Campbell on behalf of ABB whatever modifications or additional work was necessary. To my mind, in this area also the fact that Mr Campbell made no specific request for particular work or work of a particular character to be performed by scaffolders within their area of expertise, is of no moment. Her Honour found that in general terms extra work was requested, ABB had the benefit of it and in the commercial setting of this project it would, in my opinion, clearly be unjust that Fremantle Scaffolding should bear the cost without the capacity to recover it to the extent that it was reasonably incurred. The nature of the benefit
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to ABB was, in common with other areas of the claim by Fremantle Scaffolding, to enable the whole project to be carried on expeditiously despite the need to accommodate changes in the work required. My reaction to the pleading point is the same in respect of this area of the claim as it is in respect of the cross-over bridges and associated works.
38 In my view, none of the grounds of appeal are made out and the appeal should be dismissed.
39 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Murray J, with which I agree, but I wish to add a few words of my own.
40 The appellant ("ABB") does not take issue with the statement by the learned trial judge of the law relating to a quantum meruit claim based on what her Honour described as "the two broad categories of claim" identified by the High Court in Pavey v Matthews Pty Ltd v Paul (1987) 162 CLR 221. The second of these categories is relevant to the present case:
"Where the law imposes an obligation independent of contract to pay a fair and reasonable price for the goods and services, such obligation arising from the law of restitution or unjust enrichment."
The trial judge went on to say:
"The claim the plaintiff must establish is that the defendant … is the person or entity who accepts this benefit of the services and it did so in circumstances where the defendant should reasonably have appreciated that the plaintiff would expect payment from the defendant for such services."
41 It may be, as Murray J suggests, that this requirement is not essential. However, if the defendant, as a reasonable person, did not appreciate that the plaintiff would look to him for payment, it would probably be difficult to make out a case of unjust enrichment. That is why Byrne J in Brenner v First Artists' Management Pty Ltd & Anor [1993] 2 VR 221, said that "the appropriate enquiry" was whether the recipient of the relevant services should have realised he would be expected to pay for them.
42 In grounds 1 and 2 of the present appeal, ABB, relies on the finding made by the trial judge that Mr Chapple did not during the course of the contract, expect to be paid by ABB for the work carried out. That finding, it is submitted "is enough to dispose of the claim".
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43 Mr Chapple was undoubtedly of that view because he expected to be paid by CIS, with which he had contracted. Indeed, he had been told by Mr Thompson of ABB that he should look to CIS for payment.
44 However, if the trial judge stated the law correctly, Mr Chapple's actual view cannot be taken into account when the appropriate enquiry is about the view which ABB ought reasonably to have held in all the circumstances.
45 Those circumstances included ABB's rejection of the CIS claim because it contended CIS was out of time. As counsel for ABB said, it was to be expected that Mr Chapple's claim against CIS would be "passed up the line". In my view, this emphasises that by avoiding payment as it did, ABB was enriched unjustly. In other words, in those circumstances, ABB ought to have expected to pay Mr Chapple.
46 The same answer may be made to grounds 3 and 4 of the appeal which relate to a claim for the construction of crossover bridges. The trial judge found that the work was carried out as "a direct result of Mr Campbell's (of ABB) request to the plaintiffs to construct the scaffolding in such a way as to clear the obstruction created by the pipe racks and cable trays in the area at the base of the precipitator".
47 ABB submits that the finding was not supported by the evidence. I do not accept that submission. There was evidence by Mr Rogan, a very experienced scaffolder who was employed by Mr Chapple as his supervisor, that he was told by Mr Campbell he would have go round the obstruction presented by the pipe racks. It was clearly open to the trial judge to accept that evidence. In my view, it represented a clear instruction to carry out work which benefited ABB.
48 Grounds 5 and 6 relate to the construction of a crane entry, and the extra scaffolding work which the trial judge found to be "an inevitable consequence" of that construction.
49 The trial judge made findings which were open to her on the evidence to the effect that the extra work was authorised by Mr Thompson. He told Mr Rogan "If that's the way its got to be done, Frank, I'm not a scaffolder, that's the way its got to be done".
50 ABB accepted the benefit of the work in circumstances which are common to the earlier grounds. In my view, the claim was made out.
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51 Ground 7 relates to a claim for work carried out by Mr Chapple on his own initiative, in the sense that, as the trial judge found, he received no specific instructions to carry out the work. However, her Honour found, as was open to her on the evidence, that:
" … the work needed to be done and there was no readily apparent solution other than for the plaintiffs to proceed in the manner that they did. … (the work) was a direct result of the requests made on behalf of (ABB) to Mr Rogan, and hence the plaintiffs, that the scaffolding would have to be altered in such a way to allow obstructions to be (a)voided to permit (ABB) to proceed with their work on site." (at 65)
52 Again, in my view, that finding, in all the circumstances, justified the claim.
53 ABB submits in relation to grounds 3, 5 and 7 that the trial judge reached her conclusions on bases which were not pleaded against ABB and not contended for at trial. In my opinion, for the reasons set out by Murray J, this submission should be rejected.
54 The appeal should therefore be dismissed.
55 EINFELD AJ: For the reasons given by his Honour, I agree with Murray J that this appeal should be dismissed.