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My initial reaction is that the payment/ liability to the sub-contractors ought not to matter.

In the example, the relevant "transfer or resources" is the performance by the sub-contractor on behalf of the main contractor. As far as the landowner is concerned, he has requested performance, at least in the first instance, not from the sub-contractor but from the main contractor. As far as the main contractor is concerned, performance by the sub-contractor has resulted in a reduction in his assets/ resources in that he no longer has any right of action against the sub-contractor to compel performance nor, perhaps, any right to allocate resources elsewhere. Whether he is now liable to pay the sub-contractor is neither here nor there. As far as the sub-contractor is concerned, his performance was requested by the main contractor and has discharged an obligation under his contract with the main contractor.

In view of the above, the landowner's enrichment, it is submitted, should be regarded as having been "at the expense of" the main contractor. Whether it should also be regarded as having been at the expense of the sub-contractor is, in my opinion, open to doubt. I am not convinced that the sub-contractor could maintain a restitutionary claim against the landowner in the event, for example, of the main contractor becoming insolvent (The Trident Beauty; Brennan -v- Brighton BC and Henderson -v- Merrett would all seem to be relevant in this regard).

Any views

Andrew

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