@scotlandx said:
mini – the High Court case you cite is a contract case which considers the principle of quantum meruit.
Yes it is. It is also a case about restitution. Indeed, the headnote reads:
“Restitution – Unjust enrichment – Appellants accepted benefit of construction work performed by and at the expense of respondent – Claim that it would be unconscionable for appellants to retain benefit – Appellants made no direct request of respondent – Whether restitutionary claim available.”
Quantum meruit and restitution are similar, however, they are not the same. Indeed, you are quite correct that quantum meruit is applicable to contract law. Sometimes it is considered as the damages arising from an “implied contract”.
With restitution, on the other hand, there is no contract (I believe it is often considered that there is a “quasi contract”, but that isn’t an actual contract). It is an equity and/or common law principle that allows justice to be done where was no clear promise ever made (or ever intended). Thus, it appears that the law of restitution is most applicable to the op’s case, those legal principles having been considered by the High Court in the case I cited.
The Swan case dealt with an owner making unauthorised repairs to the common property, where it was held that the expenses were not recoverable as a loss attributable to a breach of duty, i.e. the OC did not breach its duty, and it is up to the OC to determine how the common property is to be repaired. The reverse does not apply – the OC is not telling the owner how to repair his property, they were simply investigating the source of a leak.
With respect, I wouldn’t see why the reverse wouldn’t apply. It is up to the owner of the property (which, in the case of common property, is the owners corporation) to decide how the property is to be repaired. In the case of a lot, it is up to the lot owner to decide how their property should be repaired.
If the owners corporation went ahead and repaired (or made investigations to repair) lot property, for alleged breach of statutory duty, without authorisation from the lot owner then the owners corporation cannot claim, as damages, from the lot owner the costs of the repair.
Neither of those cases is relevant to this issue. It is very dangerous to take parts of decisions from different fact scenarios considering different legal principles, and applying them to something like this.
The issue here is quite simple – if you have something in your lot that is faulty that affects the common property, are you liable for the expenses in both investigating and repairing the fault? I would say yes – if you are liable for the repair, you are liable for investigating the source of the fault.
Yes, usually the owner of a property is responsible for repairing their property. However, that doesn’t give another party the right to go ahead, without the owner’s consent, and spend money to repair that owner’s property and then seek reimbursement (or sue for damages) of the cost of the repairs. Swan’s case was saying that the law doesn’t look favourably on such persons seeking reimbursement in such cases.