Hit Ups

Module 3 – Hit Up 1

How to search for a QBCC Licensee

A QBCC License check should be done before you commence doing business with anyone who may undertake building work. As you have read in the Playbook for Module 3, if a subcontractor is required to hold a QBCC licence and does not, it will not be able to use the Adjudication process. The Adjudicator will hold no jurisdiction to decide an Application from a Claimant. This is relevant to know, as it will mean that you cannot be ordered to pay.

If you receive a Payment Claim, even if you have previously done a search, you should follow the instructions of Coach, Michael Chesterman in this video in:

undertaking a search on the QBCC website; and
assessing what the information contained in the search means for your project and your ongoing interactions with the subcontractor.

Module 3 – Hit Up 2

Licensing Case Study – Cant Contracting

The case Cant Contracting P/L v Casella & Anor [2006] QCA 538 involved an issue with licensing .

Casella & Anor agreed to construct poultry sheds for Cant Contracting.

The council issued a stop work order at which time Casella & Anor had carried out substantial work.

Seeking to progress payment, Casella & Anor issued a Payment Claim to Cant Contracting to which Cant Contracting did not issue any response.

On 1 September 2006, Casella & Anor obtained a summary judgment against Cant in the sum of $493,339 with interest and costs.

Cant Contracting appealed on the grounds that Casella lacked the appropriate licence at the time of work and therefore was not entitled to payment. The Court said that –

“… an unlicensed contractor “is not entitled to any monetary or other consideration” for doing work pursuant to the contract, such a contractor cannot be said to have an entitlement to progress payments pursuant to ss 7, 12 and 17 of the Payment Act.”

The Court makes observations that are helpful for understanding the consequences of not having the required licence when it comes to SOP:

“It is unlikely the Act was intended to benefit builders who cannot enforce the payment provisions of their contracts, especially when the making of such a contract involved an offence by the builder. Ultimately it far from appears that the Payments Act was intended to override the disentitlement according to s 42; the contrary appears. In my view, the Payments Act operates only where there is a construction contract of which the terms as to payment are enforceable by the builder.”

“… So in the present case, the respondent’s entitlement, if any, to a progress payment and to the benefit of this scheme for its recovery, must derive from its having undertaken to carry out construction work. Yet, assuming that the respondent was then an unlicensed builder, it committed an offence in undertaking to carry out that work. The respondent’s case therefore proceeds from the unattractive proposition that its committing an offence was an essential step to its becoming entitled to the beneficial operation of this scheme.”

“…the operation of the Payments Act in the case of an unlicensed builder would lead to a result in at least many cases which is unjust, judged by the policy of the licensing provisions of the Building Act. The operation of this scheme by the overpayment of unlicensed builders pending a final reconciliation, is likely to have effects which cannot be cured … There is no sensible explanation for the Payments Act to have an operation of that kind.”

Essentially, the message from this case study is that if your subcontractor does not hold the required licence under the QBCC Act, they will not be entitled to the protections offered under BIFA.

Module 3 – Hit Up 3

QBCC Tool for assessing when a licence is required

The QBCC provides a useful, fast tool online that will save you the anguish of trawling through the QBCC Act as a first point of call. You can access the tool here. Follow this step by step process:

Read the disclaimer provided by the QBCC and assess your reliance on the information and the need for additional legal advice from Helix Legal.
In the rectangle box type the type of work being performed by your subcontractor, for example – painting.
Hit the search button.
Consider the results, for example a roof painting work may be undertaken by the following licence classes:

- builder low rise;
- builder medium rise;
- builder open; and
- painting and decorating.

This information is quickly accessible using the QBCC tool, however you should consult your legal representative as to any issues as to the interpretation of the QBCC Act.

Module 3 – Hit Up 4

SOP is a state of origin battle

Categories of Jurisdictional Error

In Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited [2010] NSWCA 190, McDougall J stated at paragraph [158] with reference to Kirk v Industrial Relations Commission [2010] HCA 1:

“The majority pointed out (at [paragraph] [71]) that “[i]t is neither necessary nor possible, to attempt to mark the metes and bounds of jurisdictional error”. However, by reference to the decision in Craig v South Australia (1995) 184 CLR 163 at 177–178, the majority identified three categories of jurisdictional error (at [72]):

1. “The mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers;
2. Entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context;
3. Proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig (at 178) that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.”)”

An example of what may be considered to be a jurisdictional fact can be seen in Brodyn Pty Ltd – t/as Time Cost and Quality v Davenport [2004] NSWCA 394. In this case, whether or not there was a construction contract was considered to be a matter of “jurisdictional fact”. That is, a construction contract was one of the “basic and requirements” for a valid Adjudication Decision. Thus, if there was such a contract, the Adjudication would open to judicial review. Consequently, if there was no such contract, the Adjudication would not be open to judicial review.

Resources list

As part of the Helix Legal Essential Series 2020, Michael Chesterman spoke to Barrister Merissa Martinez about the UK experience of Adjudication. Watch below by clicking play.

Acts Interpretation Act 1954

Queensland Building and Construction Industry Payments Regulation 2004 (Current as at 1 July 2017)

Queensland Building and Construction Industry Payments Regulation 2004 (Current as at 16 December 2015)

Building Industry Fairness (Security of Payment) and Other Legislation Amendment Regulation 2018

Building Industry Fairness (Security of Payment) Act 2017

Building Industry Fairness (Security of Payment) Regulation 2018

Corporations Act 2001 – Section 109X Service of documents

Holidays Act 1983

Building and Construction Industry Security of Payment Regulation 2008

Building and Construction Industry Security of Payment Act 1999 No 46

Queensland Building and Construction Commission Act 1991

Queensland Building and Construction Commission Regulation 2018