The Court of Appeal recently handed down its decision in Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd ending a six-year legal battle.
Hennessy Building Pty Ltd (Hennessy) built a chapel in Montville, Queensland for Chapel of Angels Pty Ltd (COA). Towards the end of construction, the relationship between the parties broke down with COA refusing to pay Hennessy’s final invoice. The matter proceeded to adjudication under the former Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) in which Hennessy was successful.
COA was not content with the decision and commenced legal proceedings in the District Court. Relevantly, COA alleged that Hennessy breached section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) by not holding an appropriate contractor’s licence to perform the building work.
At first instance the trial judge found that Hennessy had engaged in unlicensed building work as the construction of the two-storey chapel was outside Hennessy’s builder low rise licence class.
The consequence of this finding was that Hennessy was prevented from recovering or retaining any amount of remuneration that was not within the parameters of section 42(4) of the QBCC Act.
However, Hennessy also had a carpentry licence. The trial judge, therefore, found that Hennessy was entitled to recover reasonable remuneration for the building work carried out that was within the scope of its carpentry licence, unrestricted by section 42(4).
COA applied for leave to appeal the decision outside of time.
COA argued that because Hennessy did not hold a licence authorising the construction of the entire building, nor was Hennessy supervised by a different person holding such a licence, the work performed by Hennessy within the scope of its carpentry licence was still prohibited by section 42 as unlicensed building work.
The Court of Appeal rejected this argument.
His Honour Justice Fraser confirmed:
“In order to prove a contravention of that prohibition it is necessary to identify the building work allegedly carried out without a licence of the appropriate class and to prove that none of the licences held by the contractor was of an appropriate class for that work. If one of a number of contractor’s licences authorised some of the building work carried out by the contractor, the only conduct of the contractor in carrying out building work that could be proved to contravene the prohibition is the contractor’s conduct in carrying out building work that does not fall within the scope of that licence.”
The Court of Appeal decision puts the final nail in the coffin of a six-year legal battle between Hennessy and COA.
To read the full judgement, follow this link to the Supreme Court Library Queensland's website https://www.queenslandjudgment...
It is also a timely reminder for all builders to ensure that their licences adequately cover the type of building work performed. For advice about the level of building work covered by your licence, or for any other building and construction matter, contact the experts at Axia Litigation Lawyers, because – EVERY MOVE MATTERS!
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