Damages, quantum meruit
Darin v Olzomer  NSWDC 51. Johnstone DCJ. 20.05.11.
14 The question of the quantification of a quantum meruit claim was most recently considered by the Victorian Court of Appeal in Sopov v Kane Constructions PL (No 2)  VSCA 141.
There, the court held that the proper approach to assessment of a quantum meruit claim is to ascertain the fair and reasonable value of the work performed: "Axiomatically, the measure of the restitutionary remedy is the value of the benefit conferred on the party which received it." 
15 The court rejected the notion that the contract between the parties has some continuing influence when the value of the work is being assessed on a quantum meruit, because the quantum meruit remedy rests on the fiction of the contract having ceased to exist. Thus the alternative remedy "ignores the bargain which the parties struck." 
16 However, the court went on to say:"It is true that the contract price is relevant on a quantum meruit, but not because of any 'continuing influence' of the contract. The price is merely a piece of evidence, showing what value the parties attributed - at a particular time - to the work which the builder was agreeing to perform." 
17 Thus, the contract price, which is struck prospectively, does not operate as a ceiling on the value of the work done, but it may nevertheless act as a guide to the reasonableness of the remuneration claimed. 
The court went on to say that the contract price is not the 'best evidence' of the value of the benefit conferred.  Nevertheless, proof of the costs incurred in performing the work can be used to establish the value of the work done.  Furthermore, the contractor entitled to the quantum meruit was entitled to a margin for profit and overhead.