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Tang Hang Wu's "third question" (5/7/99) for me had a relatively simple (contractual) answer. The issue between the parties seems to be whether the work is covered by the contract price, or will attract extra payment. The parties agree the work must be done. They must also be agreeing that, if the umpire says the work is not covered by the contract price, the builder will be paid extra. So far, so Alex Axelrod and Steve Hedley (5/10/99). It would be different if the owner said 'Don't do the work until we get the umpire's decision' and the builder did it anyway.

Like Gordon Goldberg, I haven't read Cotter. (Can someone give me a Web address?) What happened? Eoin O'Dell's first account (5/10/99) says there was no "effective variation of the contract to cover the extra work done". So I assume the plaintiff went ahead and did the work anyway, without discussing it with the farmers. If that were so, it would seem to me not quite enough to say that the plaintiff did the work on the basis that he was to be paid. He would have answered 'Yes' to the officious bystander's question 'Is the work to attract extra pay?' but (particularly having regard to Eoin's disclosure about the finite amount of money - 5/13/99) the farmers might have answered 'No, not until you give us a chance to go back to the Minister and negotiate for extra funds'. They may even have added 'That's why we haven't yet appointed an Engineer'. But if the plaintiff did go ahead, what then? If he can get himself 'into' the contract, he will be paid. Steve Hedley (5/13/99) says the contract did contain an additional remuneration clause, and because of the parol evidence rule the farmers cannot say otherwise. But if we are to say the farmers are liable under that clause, its machinery would have to be followed, or otherwise dispensed with. I personally think it just complicates things to say the contract would terminate for breach or frustration (pace Gordon Goldberg) so I would go for some theory that the condition must be regarded as dispensed with (Mackay v Dick) or that the court would supply the deficiency (Steven Hedley 5/13/99 citing Sudbrook Estates). I would probably go for the latter, because I think someone ought at least to apply their mind to whether the physical conditions encountered could not reasonable have been foreseen. Further, if there were no way of dispensing with the machinery, I think I would have to say that the farmers are not liable. There is a contractual way (the machinery) for making them liable, there is (by hypothesis) no reason for dispensing with the machinery, and there seems to me no reason for ignoring the contract in favour of a restitution solution (accord Eoin 5/10/99 referring to denial of a restitution remedy where the contract already covers the field).

What if the work was just not contemplated by the contract at all? For us in Australia, the leading recent case is Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251. Murphy J in Cotter may have stumbled into restitution (Steve Hedley 5/10/99) but no-one could say that of Kirby P (as he then was). Priestley JA (Samuels JA agreeing) found a contractual solution, using estoppel as the means for overcoming the failure to follow the contract machinery. Tang Hang Wu may find use in his comments (272-274) on what is 'in' or 'out' of the contract (including the variation clause) and on the comments in both judgments on Liebe v Molloy (1906) 4 CLR 347. I would be very interested in what others have to say about Update. Accepting Steve Hedley's point (5/13/99) about the resources available in contract analysis, it seems to me that the more remote we become from what the parties actually agreed, the more use we might have for a restitutionary analysis that cuts to the heart of the matter of why we want to do what we end up doing. The contract techniques may have developed to meet needs at a time when we didn't think restitution.

Does it make a difference? Not in Update. Alex Axelrod suggests the work might not be completed. I would have thought the outcome might turn on how that came about - did the builder down tools, or the owner kick him off site, or the building burn down? We already have restitution explanations for what happens in contract (breach by builder, etc.) so it hardly likely to be different outside contract. There might be a statute which must be construed as precluding even a restitutionary claim for variations unless, for example, in writing (Sevastopoulos v Spanos [1991] 2 VR 194) but we would probably want to construe such a provision as applying to all variations to the work (contractual or not) as opposed to variations to the contract. The contract might provide for variations to be paid for at other than a reasonable rate, but that would be unusual, and unless the contract were very clear ('you will be paid half the reasonable cost') we might end up using the contract as evidence of what ought to be paid by way of restitution.