Gordon Winter Company Ltd v NH International (Caribbean) Ltd (Trinidad and Tobago)

A contractual quantum meruit and an unjust-enrichment quantum meruit are alternative bases of recovery. A claimant who pleads the latter may rely on the former where the litigation establishes a contract governing the work, provided it seeks recovery on only one inconsistent basis. A defendant that has relied on the contract, including by obtaining damages for its breach, cannot invoke pleading formalism to deny payment for work it requested and received. Election permits alternative inconsistent causes of action; it prevents double recovery, not alternative pleading. Cause of action estoppel does not arise where the lower-court findings support the alternative contractual case. A contractual quantum meruit may arise from an express or implied contractual term.

Gordon Winter Company Ltd v NH International (Caribbean) Ltd (Trinidad and Tobago) concerned piling work performed by a subcontractor for a head contractor. The subcontractor pleaded a quantum meruit based on unjust enrichment, while the head contractor maintained that a contract governed the work and counterclaimed for breach.

At first instance, Kangaloo J found that a contract existed, awarded the subcontractor contractual sums, and awarded the head contractor damages. The Court of Appeal of the Republic of Trinidad and Tobago held that the subcontractor could recover a reasonable contractual sum for specified varied work and remitted assessment to a Master. The head contractor appealed, arguing that the contractual quantum meruit was unpleaded and that its recognition was barred by unfairness, election or cause of action estoppel. The central issue was whether that contractual claim could properly be recognised at the appellate stage.

Appeal dismissed. The Board, in the judgment of Lord Burrows, treated the appeal as confined to the entitlement to a contractual quantum meruit for the items identified in paragraphs 2 and 6 of the Court of Appeal’s order. It accepted the factual findings below and declined to undertake a fresh factual enquiry.

1. A contractual quantum meruit is distinct from a quantum meruit effecting restitution for unjust enrichment. The distinction is explained by Barton v Morris [2023] UKSC 3; [2023] AC 684, para 204. The fact that the claim was pleaded on an unjust-enrichment basis did not prevent recognition of the contractual basis where the proceedings established that a contract governed the work.
2. It would be formalistic and unjust to allow the head contractor to rely on the contract to obtain damages for breach, while denying the subcontractor payment for work requested and performed under that contract. No different quantum was suggested, and no substantive defence to the contractual claim was identified.
3. There was no procedural unfairness. By the Court of Appeal hearing, the subcontractor had advanced the contractual quantum meruit as an alternative case. The suggested requirement for notice under clause 20.1 of the FIDIC terms had little force because the variation was undisputed and the parties had not adhered to the contractual procedures, including dispute resolution and arbitration.
4. Election permits alternative but inconsistent causes of action. The claimant may not recover on both inconsistent bases, but it may advance one as an alternative to the other. Cause of action estoppel did not arise because both courts below had found a contract consistently with the alternative contractual case.
5. A contractual quantum meruit may be founded on an express or implied contractual term. Clause 12.3 expressly provided for payment of a reasonable sum where no relevant rate or price was specified.

The Court of Appeal was therefore entitled to recognise the contractual quantum meruit and remit assessment to the Master.

• Privy Council: In [2025] UKPC 52, the appeal was dismissed.
• Court of Appeal of the Republic of Trinidad and Tobago: In Civil Appeal No P-002 of 2018, judgment was given on 27 October 2023 by Rajkumar JA, with Bereaux and Mohammed JJA agreeing. The court held that a contract governed the piling work and that a reasonable contractual sum was recoverable for specified varied work, subject to assessment by a Master.
• First instance: In CV2006-03875, Kangaloo J held that a contract existed, awarded GW contractual sums, and awarded NH damages for breach.