I have only skimmed skimmed the H Ct, but I notice that Kiefel CJ et al, [38], cite One-Step (Support) Ltd v Morris-Garner, as one of the cases in support of there only contact damages ruling. In One-Step, as I recall it, the UKSC held that an employer seeking damages against an employee in breach of a reasonable restraint of trade could only recover damages on the traditional expectation basis and could not recover assessed on the Wrotham Park basis.

It seems to me that the common sense approach in Mann, should also apply in the context of the One-Step case.

I agree with Robert that the Gageler approach is preferable to that of Nettle et al. The only people that benefit from the latter approach are the lawyers.

Peter

Professor Peter Radan,

Honorary Professor Macquarie University

BA, LLB, PhD (Syd), Dip Ed (Syd CAE), FAAL

Macquarie Law School

6 First Walk,

Macquarie University, NSW, 2109

Australia

Email: peter.radan@mq.edu.au

Blog: https://www.allaboutnothing.info

From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Wednesday, 9 October 2019 7:54 PM
To: obligations <obligations@uwo.ca>
Subject: HCofA on Restitution

Good case today on a claim for restitution following termination for breach. Mann v Paterson Constructions Pty Ltd [2019] HCA 32

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2019/32.html#fnB219

A claim by an innocent builder against an employer who has wrongly repudiated the contract. Where the builder has an accrued contractual right to payment, all are agreed that the action for that agreed sum is the only remedy. The dispute between the judges arises where the builder doesn’t have such an accrued right under the terms of the bargain. Clearly there is a claim for damages, but is there a claim for restitution of the value of the work done in the alternative?

Kiefel CJ, Bell and Keane JJ say that the only claim is one for damages. They essentially adopt the Holmesian error that the right to damages arises because the parties have bargained for it ([20]), and so governs their relationship after termination.

Very fortunately, the majority refuse to change the common law of Australia, and hold that Australian law remains in line with the rest of the common law world in allowing a claim for a quantum meruit in the alternative . (Nettle, Gordon and Edelman JJ, with a separate judgment from Gageler J.) It would be very odd indeed if a claim for restitution were available if the contract were unenforceable, but not where it wasn’t (David Securities v Commonwealth Bank of Oz [1992] HCA 48, a case that is curiously cited but undiscussed).

The only other interesting issue for the majority is that old chestnut of whether the contract price provided a cap (ie could the claimant ever recover more than they would have received if they had completed that stage of the work and so have had an accrued contractual right to payment)?

Here I prefer Gageler J’s judgment who, straightforwardly, says no ([105]). Nettle, Gordon and Edelman JJ rather weakly say usually no ([215]-[216]) without really giving an example of when it might be ok to escape the contract price.

A good case for students, that will become a staple in teaching Australian law I expect.

From:	Peter Radan <peter.radan@mq.edu.au>
To:	Robert Stevens <robert.stevens@law.ox.ac.uk>
	obligations <obligations@uwo.ca>
Date:	09/10/2019 09:25:39 UTC
Subject:	Re: HCofA on Restitution