Advanced v Daintree [2019] NSWCA 270

“I wanted YOU to do that cleaning!”  

Two parties entered into a contract: a cleaner and a client. The job was to clean a number of large retail stores.  

The cleaner agreed not to subcontract or assign its cleaning duties to anyone else without the client’s permission. If it did, the client had a right to immediately terminate and did not have to pay for any unauthorised subcontract work: [23].  

As it happened: the cleaner did about 10% of the work. The cleaner’s subcontractors (who the client did not authorise) did about 90%.   The cleaner sought payment. The client resisted.   

The cleaner litigated, lost, and appealed.  

Among the cleaner’s arguments on appeal were that if the client took the benefit of 100% of the cleaning work and only paid for the 10% then that would see the client enjoy a windfall: [41].  

The client said the contract was not a mere contract to produce a result. 

The identity of the producing party was important: [42] – [44].  

The Court found the cleaner’s obligation could not be discharged by using unapproved subcontractors, meaning it was not entitled to be paid: [87], [93], [94].  

In so finding, the Court considered that the contract made it clear that the identity of the provider of the services was important: [65] – [75], [94].