The issue as to whether a claim for quantum meruit as an alternative to contractual damages was still available was raised in Sopov v Kane Constructions Pty Ltd [No 2] [2009] VSCA 141. The Supreme Court of Victoria declined to follow McDonald. The Court acknowledged that McDonald appeared to overturn the ‘rescission fallacy’. However, the Court noted that the decision in Brooks Robinson Pty Ltd v Rothfield [1951] VLR 405 created a line of authority which – relying on the ‘rescission fallacy’ – continued to allow a contractor to advance a claim for quantum meruit in lieu of a claim for contractual damages following the contractor’s acceptance of the principal’s repudiation and the consequent termination of the contract. This meant that where a principal repudiated a contract leading to termination by the contractor, the contractor was entitled to elect between a claim for general loss of bargain damages under the contract or a claim in restitution on quantum meruit for the recovery of the value of work completed to the date of termination. The practical implication being that a contractor could claim a windfall if it was able to engineer a repudiation by the principal in a situation where the contract had become a financial loss for contractor. This posed significant risk to employers in that the agreement as to price the parties had agreed to would be undermined in the case of a repudiation leading to termination. Mann v Paterson Constructions Pty Ltd The High Court held that a contractor could no longer claim compensation on a quantum meruit basis with respect to works where it had accrued a contractual entitlement to payment. In other words, the ‘rescission fallacy’ was no longer good law in respect of contracts that provide for separable stages or portions which have been completed prior to termination and in respect of which the contractor has accrued rights in the nature of a debt. However, quantum meruit could still apply in relation to works for which the contractor had not accrued a right to payment. This might occur if the contract was an entire contract, ie where the contractor is not entitled to payment until the whole of the works are completed or if the right to payment had not yet accrued for certain separable portions of the contract. In such a situation, the total amount recoverable under quantum meruit would be capped by the agreed price for that particular uncompleted stage or portion of the works and future separable portions no longer able to be performed by the contractor. The position in New Zealand The position in New Zealand is rather unique. Initially, Lodder was followed by the New Zealand courts1. In 1979, however, the Contractual Remedies Act (CRA), was enacted to “reform the law relating to remedies for misrepresentation and breach of contract.” There was no provision in the CRA for recovering damages on a quantum meruit basis following termination of contract for repudiation. The question as to whether the CRA had displaced the common law remedies, rendering a claim in quantum meruit unavailable, was raised in the case of Brown & Doherty Ltd v Whangarei County Council [1990] 2 NZLR 63. In that case, the Judge held that s 7(1) of the CRA did replace the common law right of rescission with a right of cancellation as defined in the CRA. Quantum meruit would normally be available for a contract rescinded ab initio, but is not available under the CRA for a cancelled contract2. It was held that there was no right to claim in quantum meruit after the enactment of the CRA3. The Judge was persuaded in this view primarily because of the illogicality inherent in the previous common law. Now, the statutory scheme provides that the court may grant any relief the court thinks just. This imports a test of reasonableness otherwise absent from a claim in quantum meruit. In 2017, the Contract and Commercial Law Act (CCLA) was enacted, incorporating various acts including the CRA. Remedies available upon cancellation of a contract are now provided for by section 43 of the