Beware – Exception to the Position that you always should have an Expert to assist in a Quantum Meruit claim – Builder’s Claim – Expert Required

11/10/2024

It is prudent and in almost all cases, critical that the appropriate Expert evidence in Quantity Surveying should be consulted for his or her Expert opinion.  This will require the Lawyer to understand what is required including what evidence is required from the Expert.  Also the Expert needs to know what evidence is required to establish a quantum meruit claim.  Not all Lawyers or Experts know, what is the appropriate evidence to establish a quantum meruit claim. If the opinion of an appropriate Expert supports a claim, it is appropriate that the Expert prepares a Report which complies with all the legal requirements for a compliant Report.  The Expert to be engaged would need to be available to give evidence in Court or NCAT. 

Watson & Watson have extensive experience gained over many years in dealing with building and constructions matters and strata title matters and other commercial litigation matter which involve the engagement of appropriately qualified Experts and understanding the cruciality of having the appropriate Expert to be available to give evidence and Expert evidence in a matter.   

We refer to our various articles relating to quantum meruit claims.  We also refer to our article for example, Residential Building Disputes – Consider All Alternatives dated 21 February 2018.

However in the case of Roude v Helwani - [2020] NSWCA 310, an Electrician (Mr Helwani) was successful in claiming on his quantum meruit claim without adducing Expert evidence.

The proceedings were originally heard in the Local Court which found in favour Mr Helwani, the Plaintiff.  The Homeowner appealed this Decision to the Supreme Court of New South Wales which upheld the original Decision.  Thereafter the Homeowner appealed this Decision to the New South Wales Supreme Court, Court of Appeal.

The Local Court found that Mr Helwani had provided detailed contemporaneous invoices to the Homeowners over the 6-year period at the time during which the works were undertaken [99 of Local Court Decision] and that those invoices that were created at the time the work was being undertaken by Mr Helwani.  The invoices were not critical for the purpose of litigation [18].

There was no Expert evidence adduced by either party in the Local Court Proceedings. Although both parties attempted to adduce quotes from Experts into evidence in the Local Court, these were not admitted due to various objections raised by both parties [27].  

As a result the only evidence adduced in this matter, was from Mr Helwani [27]. Further Mr Helwani was not cross-examined on his evidence in the Local Court [29].

In a claim for Quantum Meruit the person making the claim has the onus to prove the facts including establishing the reasonable remuneration for those works.  What is a fair and reasonable rate of remuneration for the work, is a question of fact to be decided by the Court or Tribunal hearing the matter based on the evidence.

The Local Court decided that the opinion provided by Mr Helwani was based on some evidence of reasonableness, and as such the Court of Appeal of the Supreme Court of New South Wales decided there was no error in law in the Magistrate’s finding that the charges were reasonable [32]. Accordingly the Homeowner’s Appeal was dismissed and the decision in favour of Mr Helwani in the Local Court was affirmed.

Had Mr Helwani’s evidence been objected to in the Local Court proceedings by the Homeowners and had the Homeowners sought to cross-examine Mr Helwani in the Local Court Proceedings, then without appropriate Expert evidence on behalf of Mr Helwani, it is probable that Mr Helwani would not have been successful in his quantum meruit claim.

The above in our view, is based on the particular factual matters and it is critical that one considers the factual matters in your case and to obtain the necessary evidence for your case.

At Watson & Watson our Lawyers have extensive experience in all areas of building and construction and strata law including building works within a Strata Complex. If you are Homeowner or Builder, Lot Owner or Owners Corporation, it is important to seek appropriate and timely advice when dealing with or preempting a claim by the Builder or Lot Owner based on Quantum Meruit.  Please contact Richard Watson, Accredited Specialist, Commercial Litigation in the stream of Building and Construction by contacting his Personal Assistant Shereen Da Gloria to discuss your circumstances. 

The above is not to be taken as legal advice to be relied upon, without first contacting Richard Watson as referred to above.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.