De More v Garpace - [2001] NSWCA 350

Reported Decision:
53 NSWLR 132

New South Wales

Court of Appeal

CITATION: De More v Garpace [2001] NSWCA 350

FILE NUMBER(S): CA 40771/00

HEARING DATE(S): 29 June 2001

JUDGMENT DATE:
4 October 2001

PARTIES :

DeMore Constructions Pty Limited
v
Garpace Pty Limited (t/as Broad View Aluminium)

JUDGMENT OF: Stein JA at 1; Rolfe AJA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION : Supreme Court - Common Law Division

LOWER COURT
FILE NUMBER(S) : CL 11929/00

LOWER COURT
JUDICIAL OFFICER : Dunford J

COUNSEL: Appellant - Dr D Doyle/Mr J Cameron
Respondent - Mr A J McKelvey

SOLICITORS: Appellant - The Builders' Lawyers
Respondent - P J Donnellan & Co

CATCHWORDS: CONTRACT- breach - damages for breach - residential building work- Whether subcontract enforceable where subcontractor not licensed - Home Building Act 1989, ss 4, 5, 10(3), 12, 16 INTERPRETATION - statutory construction - ss 4,5,10(3), 12,16 Home Building Act 1989 - whether Parliament distinguished between employees and subcontractors - legislative policy - legislative intent ascertained by reference to language and structure of Act

LEGISLATION CITED: Home Building Act 1989
Interpretation Act 1987

CASES CITED:
Australian Concrete Services v Multiplex Constructions [1999] NSWSC 1140

DECISION: Appeal allowed with costs - orders made

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40771/00
SC 11929/00

STEIN JA

ROLFE AJA

FITZGERALD AJA

DE MORE CONSTRUCTIONS PTY LIMITED v GARPACE PTY LIMITED t/as BROAD VIEW ALUMINIUM

JUDGMENT

1 STEIN JA: I agree with Fitzgerald AJA.

2 ROLFE AJA: I agree with Fitzgerald AJA.

3 FITZGERALD AJA: The appellant (the “builder”) contracted to perform residential building work within the meaning of the Home Building Act 1989 (the “Act”). Between mid-1998 and April 1999, it subcontracted part of that work to the respondent (the “subcontractor”). It is common ground that the work which was subcontracted, namely the supply and installation of aluminium windows, was also residential building work. The builder was licensed under the Act to contract to do residential building work, but the subcontractor was not. The builder has not paid the subcontractor, which sued the builder in the Local Court at Gosford. The subcontractor’s claims include money which it alleges is due to it under the subcontract and damages for breach of the subcontract.

4 On an application by the builder, the Local Court held that the subcontractor is not entitled to enforce the subcontract by virtue of s10(3) of the Act.

5 The subcontractor appealed. A judge of the Common Law Division set aside the magistrate’s ruling and remitted the proceedings to the Local Court for hearing and determination. Earlier, another judge of the Court had expressed a contrary (obiter) opinion in Australian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 para [34]. The builder appealed to this Court by leave. It is unnecessary to comment further on the procedure which has been followed. If the subcontractor was prohibited from making the subcontract, it is common ground that the appeal should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De More v Garpace

Details

AGLC: De More v Garpace [2001] NSWCA 350
Case: [2001] NSWCA 350
Decision Date: 4 October 2001

CaseChat Overview and Summary

The dispute in *De More v Garpace* concerned the enforceability of a subcontract for residential building work. The primary issue was whether the subcontractor, Garpace, was entitled to payment under the subcontract, given that Garpace was not licensed as required by the *Home Building Act 1989* (NSW). The case was heard on appeal in the Court of Appeal of New South Wales.

The central legal question before the Court of Appeal was the proper interpretation of various provisions of the *Home Building Act 1989*, specifically sections 4, 5, 10(3), 12, and 16. The court was required to determine whether the Act, in its language and structure, distinguished between employees and subcontractors in its licensing requirements and whether this distinction impacted the enforceability of a contract where the subcontractor lacked the requisite licence. The court also considered the legislative policy and intent behind these provisions.

The Court of Appeal allowed the appeal, finding that the subcontractor was not entitled to payment under the contract due to the absence of a licence as mandated by the *Home Building Act 1989*. The court's reasoning focused on the statutory construction of the Act, concluding that Parliament had intended to distinguish between employees and subcontractors and that the licensing provisions were designed to protect consumers by ensuring that only licensed individuals or entities undertook building work. The court held that the subcontractor's failure to hold a licence rendered the subcontract unenforceable. The appeal was allowed with costs, and consequential orders were made.

Orders

Orders of the court

Appeal allowed with costs - orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	De More v Garpace [2001] NSWCA 350
FILE NUMBER(S):	CA 40771/00
HEARING DATE(S):	29 June 2001
JUDGMENT DATE:	4 October 2001
PARTIES :	DeMore Constructions Pty Limited v Garpace Pty Limited (t/as Broad View Aluminium)
JUDGMENT OF:	Stein JA at 1; Rolfe AJA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 11929/00
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL:	Appellant - Dr D Doyle/Mr J Cameron Respondent - Mr A J McKelvey
SOLICITORS:	Appellant - The Builders' Lawyers Respondent - P J Donnellan & Co
CATCHWORDS:	CONTRACT- breach - damages for breach - residential building work- Whether subcontract enforceable where subcontractor not licensed - Home Building Act 1989, ss 4, 5, 10(3), 12, 16 INTERPRETATION - statutory construction - ss 4,5,10(3), 12,16 Home Building Act 1989 - whether Parliament distinguished between employees and subcontractors - legislative policy - legislative intent ascertained by reference to language and structure of Act
LEGISLATION CITED:	Home Building Act 1989 Interpretation Act 1987
CASES CITED:	Australian Concrete Services v Multiplex Constructions [1999] NSWSC 1140
DECISION:	Appeal allowed with costs - orders made