A & M Green Investments Pty Ltd v Progressive Pod Properties Pty Ltd

Counsel: G Laughton SC (Plaintiffs) B DeBuse (Defendant) Solicitors: Pogson Cronin (Plaintiffs) Marsdens Law Group (Defendant) File Number(s): SC 2010/2693

Judgment 1WINDEYER AJ : This case is about a roundabout on Old Sydney Road near Albury. The plaintiffs and the defendant are involved in the development and sale of land. They each owned land on opposite sides of Old Sydney Road, the lands being more or less opposite each other. As a condition of the development consent for each property, the Albury City Council ( "the Council" ) required a roundabout to be constructed on Old Sydney Road at the entrance intersection to the two developments and the costs to be shared between the applicants for the development consents. 2It was envisaged that the Council would construct the roundabout, but as there was to be a delay in this work, the plaintiffs carried out the work. The cost of construction of the roundabout was $364,943. The plaintiffs seek to recover one-half of that amount from the defendant. Facts 3Thurgoona is a suburb of Albury. The land relevant to this action is to the south of Thurgoona near the Thurgoona golf course. The land of the plaintiffs is on the eastern side of Old Sydney Road, and is referred to in correspondence first as "Carlyle Gardens" and later as "Kensington Gardens", and I will call it the latter. The land owned by the defendant is on the western side of Old Sydney Road opposite to the plaintiffs' land. It is referred to as "The Elms" and I will call it that. I will refer to the plaintiffs as "Greens" and the defendant as "Progressive Pod". 4In July 2006, Progressive Pod obtained development consent from the Council for a four-stage ninety-nine-lot subdivision of The Elms land. The entrance to the subdivision on Old Sydney Road was to be where a proposed extension of Corrys Road would meet Old Sydney Road. Condition B17 is as follows: " (B17) Intersection Old Sydney road Access from Old Sydney road to main entry of development to be fully constructed to 13m width and the intersection at Old Sydney road to be designed to the RTA channelised intersection type "CHR" right-turn treatment." 5Greens purchased Kensington Gardens in 2005. They engaged a company, Coomes Consulting Group Pty Ltd, later becoming or merged into a company called CPG (Australia) Pty Ltd, to provide services associated with obtaining development approval for the Kensington Gardens land and other ongoing engineering, surveying and planning services for the project. A development application was lodged with the Council at the end of September or the beginning of October in 2006. This provided for access to Old Sydney Road by means of a T-intersection. It seems that as a result of this, the Council became concerned that as the access from The Elms to Old Sydney Road would require right-hand turn and that from Kensington Gardens would require a right-hand turn but in the opposite direction, these two intersections were too close to each other. In addition, the Council had decided that it would not or could not at that stage undertake the proposed construction of the extension of the unformed part of Corrys Road to meet Old Sydney Road. 6It is necessary to set out the people and entities who were involved on each side. Plaintiffs Mr Shaun Green - director of both plaintiff companies CPG (Australia) Pty Ltd ( "CPG" ) (originally Coomes Consulting Group Pty Ltd ( "Coomes" )) Mr Stuart Neave - civil engineer employed by CPG in charge of the Albury office of CPG Mr Paul McLean - surveyor employed by CPG Excell Gray Bruni Pty Ltd ( "Excell" ) - constructor of the roundabout Defendant Mr Michael Everard - sole director of Progressive Pod Mr Malcolm Hunt - Chief Executive Officer of the Procorp Group ( "Procorp" ), a group of entities which includes Progressive Pod, stationed in Albury The Urban Partnership ( "TUP" ) - engaged to manage The Elms development Ms Leonie McEntee and Mr Jeff Cummings - employees of TUP engaged on the project Doug Gow & Associates Pty Ltd ( "Doug Gow" ) - surveyors engaged by TUP Mr Stuart Mason - surveyor at Doug Gow SJE Consulting Pty Ltd ( "SJE" ) - civil and construction engineers engaged by the defendant for the project Ms Christie Fisher and Mr Ron Emptage - project engineers at SJE Mr Adam Dakos and Ms Felicia Davis - design engineers working on the project for SJE The Council Mr David Christy - Town Planning Team Leader Mr Leigh Clarkson - development engineer Mr Greg Blackie - infrastructure manager 7On 12 December 2006, Ms McEntee sent a facsimile to Mr Emptage, Ms Fisher and Mr Mason, among others, informing them of the requirement to change the location of the access to Old Sydney Road, inter alia asking SJE/Doug Gow to liaise with Mr Neave "re the design of the development opposite on Old Sydney Road to coordinate location of the entry points with a view to sharing costs for any road upgrade construction." 8Around the same time, Mr Emptage told Mr Neave of the problem and Mr Neave and SJE sent to each other, in the case of The Elms, copies of the changed proposal and in the case of Kensington Gardens, the existing access proposal. 9The Roads and Traffic Authority ("RTA") had in fact approved the T-intersection for Kensington Gardens but final approval was a matter for the Council which was dealing with both the subdivisions at the same time and about this time there was mention of a roundabout. There is no doubt that both Ms McEntee and Mr Neave were anxious to obtain whatever approvals required and were concerned that matters of access be resolved without delay. Both parties agreed the entrances should line up and discussion turned on the question of a four-way intersection or a roundabout. 10Mr Neave had further discussions with the Council and it became clear that Council favoured a roundabout. Mr Citroen, a traffic engineer, prepared a report on traffic flow for both developments with entrances opposite each other. This tended to support opposing right hand-turns rather than a roundabout but stated a roundabout would also operate satisfactorily. 11By this time, it had been decided by Progressive Pod to submit what is called a section 96 modification (being a modification under s 96 of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA") ) to The Elms development consent to provide, among other things, for the new proposed access and on 9 January 2007, Ms McEntee sent an email to the relevant people at Progressive Pod, SJE and Doug Gow asking them to do, as a matter of urgency, what was necessary on their part to put the amendment to the Council. 12On 22 January 2007, the Albury Local Development Committee (the "Committee"), which seems to have on it representatives of the Council, the RTA and the police, considered the section 96 modification application by Progressive Pod relating to the altered access point. The following is an extract from the minutes of that meeting: "... It is proposed that the new access road will be located immediately opposite the proposed access to the development of Carlyle Gardens on the eastern side of Old Sydney Road. The applicant submits that a roundabout is not required and is not cost effective. Having regard to the conditions of Old Sydney Road in this location, the speed profile on Old Sydney Road and the amount of road works that would be required to satisfactorily provide the traffic treatments proposed by the applicant, Council officers believe that a roundabout is a more cost effective and safer access treatment at this location. The cost of the roundabout can be shared between the 2 developments and constructed by Council to ensure it is not affected by different construction schedules and to ensure it is placed in the most appropriate location. The roundabout would be similar to that provided at the entry to Mitchell Park estate and Charles Sturt University on Elizabeth Mitchell Drive. Moved: NSW RTA, Seconded: NSW Police That the Committee advises Albury City that it has no objections to the proposed modification subject to the following: + The entry shall be designed as part of a single lane roundabout on Old Sydney Road to Council's specifications. The cost of the roundabout is to be shared equally between the applicant and the applicant for the proposed development to the east on Old Sydney Road. CARRIED" 13The Council issued a modification to the development consent on 9 March 2007. So far as is relevant here, the following condition A7 was inserted: " Entry Design The entry shall be designed as part of a single land [sic] roundabout on Old Sydney Road to Council's specifications. The cost of the roundabout is to be shared between the applicant and the application for the proposed development on Lot 2 DP 874732 and Lot 6542 DP810286." 14After the Committee met on 22 January 2007, and its recommendation was known, there were emails between Mr Neave and Ms McEntee based on the assumption the work would be done by the Council. Mr Neave referred to a cost share arrangement. Ms McEntee replied "I am not sure of the break up of costs, but perhaps on a per lot pro rata may be appropriate." However, immediately after this, Mr Neave was told by Mr Blackie from the Council that the roundabout work was not on the Council's work program and therefore "it would not be imminent". Mr Blackie said he was not aware of the Council's decision. It is not really clear to me why there would be a problem if the developers were to pay, but they at least accepted that there was. Mr Neave contacted Ms McEntee and said, "the construction of the roundabout is not in the council's forward estimate. It is going to take ages before they get around to constructing the roundabout I think we'll have to do it". Ms McEntee replied, "you might be right." 15Ms McEntee was concerned about the roundabout cost and sought advice on this from Mr Emptage. Mr Emptage replied on 21 February 2007 that a roundabout would cost about $400,000 and a four-way intersection would cost about $350,000. He gave details on this which really show the reverse was the position and having realised that, Mr Emptage informed Mr Neave of this and presumably Ms McEntee as well. In his email message to Mr Neave dated 22 February 2007, Mr Emptage said that the roundabout would be $50,000 cheaper and therefore their clients would each be $25,000 better off. On 26 July 2007, Mr Cummings asked Mr Emptage to give probable costs for the four stages of The Elms development, stating that stage one would need "to include the connection to Old Sydney Rd including the cost of the roundabout (but show the latter as a separable item)". Mr Emptage responded by giving the separate cost of the roundabout as "$150,000 (ie 50% of $300,000)". 16Mr Neave or his company prepared the roundabout plans. These were approved by Mr Emptage and given approval in principle by the Council. Ultimately, the Council issued a construction certificate for the roundabout on 3 July 2007, this having been applied for by CPG on behalf of Greens. 17As I have said, the formal consent to the section 96 modification was approved on 9 March 2007 and Mr Clarkson told Mr Neave that the roundabout plans would be approved as well. Mr Green gave instructions to proceed to construct the roundabout. The costings were to be kept separate from other costings. 18The Greens' development consent for Kensington Gardens was not obtained until 23 April 2007, although there seems to be no doubt that Greens and probably the defendant proceeded on the basis that approval would be given. Condition (A10) a) of the development consent was as follows: "The entry shall be designed as part of a single lane roundabout on Old Sydney Road to Council's specifications. The cost of the roundabout is to be shared between the applicant and the applicant for the proposed development on Lot PT 365 DP802549" 19A contract was entered into between Greens and Excell in relation to the construction of the roundabout and other works, the cost of the roundabout being said to be $258,660. Prior to this, the parties, through Mr Neave and Mr Dakos, had given each other details of gradings and levels for the roundabout design. On 15 August 2007, Mr Emtage sent details of construction costs for The Elms to Mr Hunt. These included a cost of $150,000 for the roundabout, being one-half share. 20It seems that construction of the roundabout was commenced in September 2007 and was completed some time before 24 October. There was a site meeting on 20 August 2007 attended by Mr Hayes of Excell, Mr Neave and Mr Cummings. Mr Neave, in his affidavit, said that at the meeting, Mr Cummings had said, "Can you leave out [pointing] the pavement and the asphalt on the roundabout. We want to do our own landscaping on our side of the roundabout." Mr Hayes replied, "I'm having difficulty with this. It would not be in accordance with the approved drawings and the Council won't release us from our responsibilities to finish the job." Mr Neave then said, "Jeff, you need to get written approval from the Council to change the works. We can try and accommodate the request, but TUP/Procorp/SJE need to get Council's approval and then we can perhaps vary the works to suit you. SJE needs to quantify the work and let us know." 21On 24 October 2007, Mr Neave sent Mr Cummings an email attaching details of the roundabout design and construction costs totalling $364,943 saying, "We will be seeking a contribution from Procorp towards this Roundabout as has been previously discussed." 22In September 2007, Progressive Pod had negotiations for and then, on 21 September 2007, entered into a contract to sell the major part of The Elms property to Glenfield Development Pty Ltd ( "Glenfield" ) for $4.4 million. The sale did not include seven lots which were to be created on registration of a plan of subdivision. Glenfield is apparently a partner of a company called Nordcon Pty Ltd ( "Nordcon" ), a major developer. Greens heard of the proposed sale and on 19 November 2007, Greens' solicitor wrote to Nordcon advising it of the development approval condition as to sharing costs and asking what arrangement it would make to comply. A similar letter was sent to Mr Hunt at Progressive Pod. Settlement of the sale to Glenfield took place on 19 November 2007. By agreement between the vendor and purchaser, $182,471.92 was retained in the trust account of the purchaser's solicitors, pending resolution of the claim by Greens. Terms of the retention are not clear but it seems that unless the matter was resolved within 3 months, the money in question was to be paid to the vendor, which it was. 23In December 2007, Mr Green met with Mr Hunt in the Procorp office in Albury. Mr Green said in his affidavit that the following conversation took place: Mr Green: "You still haven't paid us your share for the cost of the roundabout. It's $185,000. We sent you a copy of the costing." Mr Hunt: "It's not our problem. The cost passes with the land." Mr Green: "It does not. We need the contribution for the half cost of the roundabout from Procorp." 24Mr Green then deposed in his affidavit that in early 2008, Mr Hunt rang him and said, "Would you ask Nordcon to release the $185,000 they have held back out of the settlement. Procorp will then pay you the $185,000 over 12 months." Mr Green replied, "No. We want the money that Nordcon has retained." A few days after that, Mr Green says he telephoned Mr Hunt and said, "Why can't we have the $185,000 held by Nordcon now?" Mr Hunt replied, "Well, we have got the money and you will have to chase us for it." Mr Green then said, "We will chase you for it." 25There was no challenge to this evidence. Mr Green was a convincing witness in his oral evidence and I can see no reason to doubt his affidavit evidence which I accept. Pleadings 26The plaintiffs pleaded five separate causes of action as follows: a) Breach of contract 27The contract alleged is claimed to be partly express and partly implied and partly oral and partly written, or in the alternative the contract is said to be wholly implied. Insofar as it is express and oral, it is said to be contained in a conversation between Mr Neave, Mr Emptage and Ms McEntee. Insofar as it is written, it is said to be contained in a series of emails on 22 January 2007, 22 February 2007 and 24 October 2007 to which I have referred. Insofar as it is implied, it is said to arise from the consents, the resolution of the Committee meeting and the construction of the roundabout. Insofar as it is wholly implied, it is said to arise through the emails, the two consents, the said resolution and the roundabout construction. b) Unjust Enrichment 28This is pleaded as the obligation to construct and pay for the cost of the roundabout, the benefit to Progressive Pod arising through construction by Greens and Progressive Pod's acquiescence in participation in the planning of the roundabout. c) Trade Practices claim 29This claim is pleaded as a misleading representation claim and reliance upon that representation. There was no evidence of reliance. The claim was not pressed. d) Estoppel claim 30This claim was again based on a representation that Progressive Pod would contribute to the cost of the roundabout on the faith of which Greens constructed the roundabout. Once again there was no evidence of reliance. The claim was not pressed. e) Equitable contribution 31This claim is pleaded in paragraphs 29-33 of the Further Amended Statement of Claim ( "FASOC" ) as follows: "29 Green repeats the allegations contained in paragraphs 20, 21 and 22, 27 and 28 above. 30 Green and Procorp were bound jointly and severally to bear the liability to pay for the construction of the roundabout. 31 The liability arose from the Green consent; the Procorp consent, and resolution LDC (3); 32 The liability of Green and Procorp was coordinant and/or common to both Procorp and Green. 33 In the premises, Procorp is liable to contribute 50% to Green to the cost of construction of the roundabout." 32Paragraph 29 of the FASOC, so long as it relies on paragraphs 20, 21 and 22 of the FASOC, does not assist as those paragraphs plead reliance on a misleading representation. Paragraphs 27 and 28 plead that Progressive Pod knew Greens was carrying out the construction so that Progressive Pod is estopped from denying the obligation to contribute. Paragraphs 30-33 can stand alone without any reliance upon paragraph 29. Defence 33I will not deal with the pleaded defences to the Trade Practices and estoppel claims. 34As a general defence, Progressive Pod denies that TUP represented them. In defence of the contract claim, in addition to denying any contract, the defendant denies that Mr Emptage and Ms McEntee were acting on its behalf. 35As to unjust enrichment, the defendant denies enrichment to the detriment of Greens. 36As to the equitable contribution claim, the defendant denies any liability to contribute. 37In respect of all claims, the defendant puts in issue the amount claimed. I take this to be the claimed liability to contribute 50% and also the reasonableness of the construction cost. 38I should dispose of the construction cost at this stage. Mr Neave was responsible for the letting and supervision of the construction. There were some additions to the original work in the tender. The evidence of Mr Neave is that the amount was reasonable. There was no challenge to this and I accept it. 39Again, so far as agency is concerned, no argument or evidence of the defendant was directed to this. Whether or not there was actual authority, there can be no doubt there was apparent or ostensible authority in those persons from TUP and SJE to bind the defendant. This was not disputed. 40It is now possible to deal with the three remaining claims. Equitable contribution 41Mr G Laughton SC for the plaintiffs said in his oral submissions that he thought this was his strongest case. For the short reasons which follow I do not agree. 42Accepting for the purposes of argument that Greens and Progressive Pod had agreed between themselves to share the costs of the construction of the roundabout, that in itself would not be sufficient to give a right to contribution. That is because Greens were liable to Excell for the construction costs and Progressive Pod had nothing to do with the works contract. Progressive Pod could not have been sued by the contractor. 43For a right to equitable contribution to arise, the parties must be equally liable for the same obligation, not to themselves but to another. Payment by Greens to Excell did not relieve Progressive Pod of any liability. It was under no liability to the contractor. The requirement of coordinate liability is not satisfied. Common obligation is an obligation which each of two or more persons has to a third person for loss or damage. The principles have been restated in Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 at [14]-[16] and [38]-[50]; and in Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129 at [38] where the requirement of common legal burden was explained and at [50] where the concept of common design was dismissed for the reasons explained in [67]-[83]. Contract claim 44This claim has been amended on two occasions. The first amendment was made at the conclusion of the opening address of counsel for the plaintiffs. The second amendment was made after judgment was reserved as a result of my relisting the case and drawing the attention of counsel to problems with a pleading alleging a contract made on 22 January 2007 but giving as particulars of the written part emails sent after that date. Particulars were also given of a contract wholly implied but still alleged to be made on 22 January 2007. 45When the matter was relisted, Mr Laughton sought to make further amendments to the statement of claim. I did not allow all the amendments sought having regard to the way the case had been conducted and the statement of Mr Laughton when he sought the first amendment at paragraph 12.6, that its purpose was to plead a wholly implied contract but still made on 22 January 2007. Had it been possible to determine the claim with all the proposed amendments without the need to reopen and take further evidence, I might have allowed all the amendments sought. Those amendments would have raised a claim of a contract formed by conduct showing mutual assent as discussed in cases such as Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11 and Kriketos v Livschitz [2009] NSWCA 96. I accepted, however, the statement of counsel for the defendant that reopening would be necessary to address the amendments and I refused to allow this late amendment. 46It follows from this that the case in contract requires a finding of a contract made on or about 22 January 2007 or 22 February 2007. Correspondence or oral statements after that date only go towards acknowledgement of such a contract and not to its formation. 47The emails of 22 January 2007 (see page 195 of Exhibit of the courtbook) referred to in paragraph 14 of the ASOC could not bring about any contract. There was no agreement as to a basis for cost sharing and from the point of view of Mr Neave, the conversation was as to the cost of design not cost of construction. 48The email from Mr Emptage to Mr Neave of 22 February 2007 could not, I think, be thought to somehow bring a contract into existence. It is not expressed in language that in any way indicates agreement or that any agreement was sought, although it is probably fair to say that it does indicate what the result might be if there were agreement as to cost sharing. There was no acceptance of this. 49On no basis could the development consents support the existence of a contract. In fact, the conditions assume liability to the Council, not some arrangement that Progressive Pod would pay one-half of the construction cost to Greens. 50The contract claims alleging contracts entered into on either of the stated dates fail. Unjust enrichment 51In the paragraphs of the FASOC dealing with unjust enrichment, the plaintiff: (a) repeats the allegations in paragraph 7, namely that the conditions of consent required a roundabout to be constructed and the cost to be shared; (b) says that in the premises Progressive Pod had a legal obligation to construct and pay the cost of construction of the roundabout; (c) repeats the allegations in paragraphs 8 and 9, namely that Greens constructed the roundabout in compliance with the approvals expended and paid the cost of $368,943; (d) says that Progressive Pod has been incontrovertibly benefited through Greens' discharge of the condition of the Progressive Pod consent in requiring construction of the roundabout and that Progressive Pod "acquiesced in, and actively participated in the planning for the construction of the roundabout" and therefore Progressive Pod has been "unjustly enriched to the detriment of [Greens]". 52Little attention was given to this claim in submissions by counsel for the plaintiffs which concentrated, for the most part, on the contract claim and the claim for contribution. No case was referred to in argument other than Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635. 53Restitution claims based on unjust enrichment are not easily dealt with by trial judges in Australia. I accept, at the start, the caution about top-down reasoning: see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at 544, and the requirement to avoid palm-tree-like justice. 54The starting point is always in the well-known passage in the judgment of Deane J in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 at 256-257 that unjust enrichment constitutes: "...a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case." 55In Lumbers, after setting out the passage quoted from Pavey & Matthews, the following was said at [84]-[86]: "84 It is important to recognise two points about Pavey & Matthews . First, there was no issue in that case about whether the plaintiff, a builder, had a claim for work and labour done and materials supplied. The issue in the case was whether that claim was defeated by a statutory provision analogous to s 4 of the Statute of Frauds 1677 (UK) ("no action shall be brought upon any agreement ... unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised"). In particular, the issue was whether the builder's action on a quantum meruit was a direct or indirect enforcement of the oral contract the parties had made. The majority in Pavey & Matthews held that because "the true foundation of the right to recover on a quantum meruit does not depend on the existence of an implied contract" the action was not "one by which the plaintiff seeks to enforce the oral contract". 85 The second point to be noted is that unjust enrichment was identified as a legal concept unifying "a variety of distinct categories of case". It was not identified as a principle which can be taken as a sufficient premise for direct application in particular cases. Rather, as Deane J emphasised in Pavey & Matthews , it is necessary to proceed by "the ordinary processes of legal reasoning" and by reference to existing categories of cases in which an obligation to pay compensation has been imposed. "To identify the basis of such actions as restitution and not genuine agreement is not to assert a judicial discretion to do whatever idiosyncratic notions of what is fair and just might dictate." On the contrary, what the recognition of the unifying concept does is to assist "in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognise such an obligation in a new or developing category of case " (emphasis added). 86 Builders' submission that acceptance of a benefit, without a request, suffices to found an action for work and labour done or money paid thus finds no direct support in Pavey & Matthews . That issue did not arise and was not decided in that case. Rather, the question to which Pavey & Matthews directs attention is whether the long-established and well-recognised category of cases constituted by claims for work and labour done or money paid at the request of another should be extended or developed in the manner for which Builders contended. And in that regard Builders emphasised what had been said by Doyle CJ, for the Full Court of the Supreme Court of South Australia, in Angelopoulos v Sabatino ." 56There followed, in Lumbers, discussion of the decision in the judgment of Doyle CJ in the Supreme Court of South Australia in Angelopoulos v Sabatino (1995) 65 SASR 1 which dealt with the factors relevant to acceptance of a benefit. The judgments in Lumbers do not in words say that acceptance of the benefit of work done and materials provided is not sufficient in the absence of a request to justify a claim for restitution. This was because Doyle CJ had found that there was an implied request for the work there in question to be done. However, there remains the question in the case of a claim for work done and materials provided whether acceptance without request would mean, in the words of Pavey & Matthews, the law was recognising "an obligation in a new or developing category of case". 57After careful consideration of Lumbers, I have concluded that a claim under what would otherwise be a common money count, substituting acceptance "for request" would be a new category of case giving rise to an obligation to pay as to justify restitution and is not a course which I should take. In coming to this conclusion, I realize it is contrary to what is said about non-requested and accepted benefit in K Mason, J W Carter & G J Tolhurst, Mason & Carter's Restitution Law in Australia, 2 nd ed (2008) at [157]. However, with respect to the learned authors, those paragraphs relied upon from Lumbers to support the adoption of free acceptance, namely [39], [53], [75] and [80] do not to my mind appear to do so. 58For the plaintiff to succeed then, as there was no express request for the work to be done, it is necessary to consider whether a request can be implied as a matter of fact. 59In Bullen & Leake, Precedents of Pleadings , 3 rd ed (1868) at 42, the notes to the common indebitatus count for money paid at the request of the defendant state that a request or authority may be implied by the general course of dealing, or by the nature of the particular transaction, and that "a request will generally be implied where the defendant has notice of the payment being made for him, and does not dissent": Paynter v Williams 1 C & M 810; Alexander v Vane 1 M & W 511 being given as authorities to support the statement, which they do. This has been repeated, with the same case references, in subsequent editions, for example, in I H Jacob, Bullen and Leake and Jacob's Precedents of Pleadings 12 th ed (1975) at 679 where it is said: "Where a defendant has adopted and enjoyed the benefit of the consideration, his subsequent assent amounts to a ratihabitio, and such ratification may be relied on as evidence of a previous request ( Eastwood v Kenyon (1840) 11 Ad & E 438, 451)." These statements as to implied request are not directed to claims for work done, but they do extend to such claims: see Lumbers at [89] and the cases there cited. 60The facts which go to the question of implied request would be the acceptance that the Council was not going to construct the roundabout; that Progressive Pod knew that Greens, through CPG, was going to do the design work for the roundabout and that Progressive Pod was contributing to such work; the fact that Mr Emptage provided TUP and Mr Hunt with details of the projected costs of the roundabout; and the fact that Mr Cummings was present at the meeting on 20 August 2007 where amendments to the roundabout were discussed. These are, I think, sufficient for a request to be implied that the construction work was to be organised and carried out by Greens, but with input from Progressive Pod, for the benefit of both parties. 61If further evidence of this were necessary, it seems to me that Mr Everard's concession in cross-examination that the roundabout solution was reasonable and that the applicant should pay half of the construction cost supports the finding of an implied request. 62On the facts which I have found, a claim for restitution is made out, unless the arguments of the defendant, which I will shortly deal with, mean the plaintiffs' case must fail. Before going to that I should add that if I am wrong in my conclusion as to implied consent and also wrong in holding acceptance is not sufficient, then the evidence clearly shows acquiescence in the work and, unless I am wrong in the next matter discussed, acceptance of the benefit of the work. I appreciate that the question of consent was not argued. However as it places a higher hurdle for the plaintiff than does acceptance, it is not unfair to the defendant to consider it as no additional facts are involved. Did the obligations under the Progressive Pod consent pass to Glenfield and did it not receive the benefit of the roundabout work? 63As I have said, this was the contention of Mr Everard, and also of Mr B DeBuse, counsel for the defendant. There is no doubt that a purchaser of land subject of a development consent is bound by the conditions of consent if that purchaser undertakes the approved development. That is made clear by Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472. The conditions, for the most part, in each relevant consent are expressed as conditions of development not as responsibilities of the applicant, but there are some, such as condition C1 in each consent stating what the applicant must do before commencing work, condition C4 which relates to demolition and condition D3 which relates to the level of asbestos, where "applicant" must be read so as to place the burden on the developer at the time. 64The roundabout condition is somewhat different. It is not quite clear to me how the Council can impose, as a condition of consent, an obligation on one applicant to share some cost with another, unless, as was intended here, following the resolution of the Committee, that the roundabout would be constructed by the Council. If this happened then the Council could have enforced the condition by obtaining 50% of the cost from each developer. That, however, is entirely different from the position here where one developer did the construction work. 65There is no evidence of what work has been done on each of The Elms and Kensington Gardens development apart from construction of the roundabout and in the case of The Elms, the construction of some houses on those lots retained by Progressive Pod. There is no evidence that Progressive Pod is acting contrary to s 76A(1) of the EPA in connection with any development so as to enable Greens to bring an action in the Land and Environment Court under s 123 of the EPA for a mandatory order requiring Progressive Pod or Glenfield to pay to Greens one-half of the roundabout cost. That is what Mr DeBuse submitted Greens should do. Even if the facts brought s 123 into play, which I do not think they do, it is unlikely the Land and Environment Court would make such an order if an action between parties were available on some contractual basis or on a claim for restitution. 66The roundabout was begun before contracts for the sale by Progressive Pod to Glenfield were exchanged and its construction was completed before settlement of that sale. If the work was done for the benefit of both owners, which it was, with the acquiescence of Progressive Pod and at its implied request as I consider it was, then Progressive Pod has benefited from the work and the inference must be drawn that the benefit was included in the sale price. The contract for sale contained no clause under which the obligation passed to Glenfield so as to enable the conclusion to be drawn the price was reduced by reason of that obligation. In fact, the evidence is clearly against that. This may not really matter if relief is available under the old common money count but as the case was run on the basis of unjust enrichment, it is proper to find enrichment and to find it unjust, as I do. 67As I said it was not suggested the cost of the roundabout was not reasonable. Nor was it suggested that an equal sharing of the cost was not reasonable. There was in fact evidence it was reasonable because although the 99-lot subdivision created fewer residential units than the Greens subdivision, the former was expected to result in more vehicle movements per unit than the latter. Conclusion 68There should be judgment for the plaintiff for the amount claimed. I consider interest should run from 1 December 2007, but I am prepared to hear submissions on that and on costs.