Field v Dettman

[2013] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Field v Dettman [2013] NSWCA 147

Hearing dates:

24 April 2013

Decision date:

03 June 2013

Before:

Beazley P at [1];
Meagher JA at [2];
Preston CJ of LEC at [3].

Decision:

1.  The Further Amended Summons is dismissed.

2.  The plaintiffs are to pay the defendant's costs of the proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

JUDICIAL REVIEW - determination of District Court dismissing appeal from decision of Consumer, Trader and Tenancy Tribunal on questions of law - application for certiorari to quash determination - restitution claim to recover monies paid to contractor contrary to the Home Building Act - whether District Court failed to find payment made under mistake as to requirement for contract to be in writing - such question not a ground of appeal in District Court - no error of law in failing to determine a question not in issue on appeal - whether Home Building Act precluded payee raising any "defence" to restitution claim - question not arising as entitlement to restitution not established - whether Home Building Act gives right of action to recover money paid to a contractor not entitled to receive money - no statutory right of action given

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001 s 67
Home Building Act 1989 ss 4(1), 7(1), 10, 18B, 48I(1), 92(1),(2), 94(1A)
Supreme Court Act 1970 ss 48(2), 69

Cases Cited:

Alexander v Gregoriou [2010] NSWDC 15
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380; (2012) 295 ALR 147
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
O'Connor v S P Bray Pty Ltd (1937) 56 CLR 464
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
X (Minors) v Bedfordshire County Council [1995] 2 AC 633

Category:

Principal judgment

Parties:

Jason Field (First Appellant)
Kim Field (Second Appellant)

Representation:

Mr F Corsaro SC with Mr P J Bambagiotti (Appellants)
Mr G Jensen (Barrister) (Respondent)
Thomas Mitchell Solicitors (Appellants)
Gillis Delaney Lawyers (Respondent)

File Number(s):

249898 of 2012

Publication restriction:

No

 Decision under appeal 

Citation:

[2011] NSWDC 125

Date of Decision:

2011-08-31 00:00:00

Before:

Sidis DCJ

File Number(s):

00405209 of 2010

Judgment

1. BEAZLEY P: I agree with Preston CJ of LEC.

1. MEAGHER JA: I agree with Preston CJ of LEC that this application for judicial review should be dismissed. Only two grounds for relief were pressed before this Court. The first ground must be rejected for the reasons identified by his Honour. The question which it is said the District Court failed to address on the limited appeal to it under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 was not raised for its determination. The second ground depends upon there being a statutory right of action entitling the maker of a payment received contrary to the prohibition in s 92(2) of the Home Building Act 1989 to recover that payment. Again, for the reasons his Honour gives, that argument should be rejected. There is no express conferral of such a right of recovery. Nor is the grant of such a right necessarily to be implied from that provision. To the extent that s 92 can be said to prescribe conduct which must be observed, it is not to be construed as providing that any failure to do so is actionable at the suit of someone who thereby sustains loss. The maker of such a payment may be entitled to recover it under restitutionary principles. However that relief was not available to the applicants in this case because of the findings of fact made by the Consumer, Trader and Tenancy Tribunal.

1. PRESTON CJ of LEC:

Nature of proceedings and outcome

In proceedings in lieu of a writ of certiorari, Mr and Mrs Field sought an order quashing the determination of the District Court dismissing their appeal from the decision of the Consumer, Trader and Tenancy Tribunal on questions with respect to matters of law. The Tribunal had dismissed their claim for restitution and reimbursement of monies paid to a builder in relation to construction of their house. They pressed two grounds for certiorari. I have determined that they have not established either ground. The summons should therefore be dismissed with costs.

The contract to do residential building work

1. Mr and Mrs Field and Mr Dettman have known each other for 25 years. Mr Field and Mr Dettman worked in the building industry. Mr Field was a roofing tradesman specialising in metal roofing. Mr Dettman was a carpenter.

1. Mr and Mrs Field wished to build a new house at Balcolyn on Lake Macquarie. In order to keep the costs down, they proposed to construct the house as owner/builders. They asked Mr Dettman to assist them. Mr Dettman would undertake carpentry work on the house. Mr Dettman would also coordinate the work of other trades and contractors. He agreed to carry out his work for $37.00 per hour plus GST for each person on the job and charge the invoiced cost plus 10% for items that he organised and paid for. Mrs Field agreed to deposit monies into Mr Dettman's cheque account. Mr Dettman would make payments from this account for materials, services and the work of other trades. The parties agreed on these arrangements.

The contract breached the Home Building Act

1. The contract between Mr Dettman and Mr and Mrs Field for the construction of the house, and the doing of the residential building work, were in breach of the Home Building Act 1989 in three respects. First, the contract was not in writing and dated and signed by or on behalf of each of the parties to it, in breach of s 7(1) of the Home Building Act. Secondly, Mr Dettman was not the holder of the appropriate contractor licences authorising him to contract to do all of the kinds of work he had agreed to do under the contract, contrary to s 4(1) of the Home Building Act. Mr Dettman was licensed under the Home Building Act to undertake carpentry work, but he was not licensed to do other kinds of residential building work, including organising other contractors to do such work. Thirdly, Mr Dettman did not enter into a contract of insurance in relation to the residential building work he would undertake, which he was required to do as the work would exceed $12,000 in value, in breach of s 92(1) of the Home Building Act.

The house was constructed

1. The house was constructed as agreed between the parties. Mr Dettman and his employee undertook the carpentry work. Mr Dettman arranged for tradesmen and contactors to perform other work. Mr Field worked on-site daily providing labouring assistance as required from time to time. He also carried out the roofing work. During this time, Mr Field lived with Mr Dettman at Mr Dettman's home.

Payment under the contract was received

1. Mrs Field paid $320,971 into Mr Dettman's cheque account. The District Court found that Mr Dettman applied those monies as follows:

• $73,343 for the services of [Mr Dettman] and his employee;
• $27,479 representing the invoice cost plus 10% for services coordinated or paid by [Mr Dettman] through his cheque account;
• $3,300 for the cost of culverts plus 10%; and
• $221,307 in payments to third parties and service providers.

(at [5] of Sidis DCJ's judgment of 31 August 2011. I note that the sum of these amounts is greater than the total of $320,971 but no issue was taken with the finding).

1. Towards the end of the works, Mrs Field told Mr Dettman that there would be no further money for tradespersons and that work would have to stop. Mr Dettman accounted to Mr and Mrs Field for the balance remaining in his cheque account and paid them that sum, together with a further sum that arose from an unrelated transaction.

Claims for rectification of defective works and restitution of monies paid were made

1. At around this time, the relationship between Mr and Mrs Field and Mr Dettman broke down. Mr and Mrs Field claimed that some of the building work was defective and that Mr Dettman should repay the monies Mr and Mrs Field had paid him.

1. On 8 July 2008, they applied under s 48I(1) of the Home Building Act to the Consumer, Trader and Tenancy Tribunal for the determination of two building claims: first, a claim that the residential building works performed by Mr Dettman were defective and in breach of the implied warranties under s 18B of the Home Building Act and seeking damages ('the rectification claim') and, secondly, a claim for reimbursement of $320,971 in restitution for monies paid by Mr and Mrs Field to Mr Dettman under a mistake of fact and/or law ('the restitution claim').

1. In relation to the restitution claim, Mr and Mrs Field claimed in the Points of Claim that there were two breaches of the Home Building Act: the contract was not in writing (in breach of s 7) and there was no contract of insurance in place in relation to the residential building works or a certificate of insurance associated with the works (in breach of s 92). At the hearing before the Tribunal, Mr and Mrs Field added a third statutory breach that Mr Dettman was not licensed to do all of the residential building works that he did (in breach of s 4 of the Home Building Act).

The Tribunal's determination of the claims

1. The Tribunal (Member Ringrose) made three determinations. The first determination (on 14 September 2009) was of a preliminary issue dealing with the relationship between the parties. The Tribunal held that Mr Dettman was engaged as a contractor by Mr and Mrs Field as the owner/builders.

1. The second determination (on 20 October 2010) dealt with Mr and Mrs Field's two building claims. The parties had reached agreement regarding the rectification claim. The Tribunal made orders in terms of the parties' agreement that Mr Dettman pay Mr and Mrs Field $4,592 for rectification of defective carpentry works and $5,408 in relation to other defective works performed and/or coordinated by Mr Dettman.

1. The Tribunal dismissed Mr and Mrs Field's restitution claim, holding that there was no factual basis for finding that Mr and Mrs Field had made payments to Mr Dettman by mistake in relation to Mr Dettman's licence and insurance status (p 19).

1. The Tribunal also applied the decision of the District Court in Alexander v Gregoriou [2010] NSWDC 15 that the legislative scheme of the Home Building Act did not entitle reimbursement of monies paid under a contract in breach of the Act (pp 21-22).

1. The third determination (on 14 December 2011) was to order Mr and Mrs Field to pay Mr Dettman's costs.

Appeal to the District Court against Tribunal's decision on questions of law

1. On 22 February 2011, Mr and Mrs Field appealed under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 ('the Tribunal Act') to the District Court against the Tribunal's second determination dated 20 October 2010. Such an appeal is restricted to a decision on a question with respect to a matter of law (s 67(1)). Mr and Mrs Field raised 31 grounds of appeal in their Amended Summons commencing the appeal. A number of grounds variously claimed that the Tribunal had erred in finding that Mr and Mrs Field did not pay the monies under a mistake of fact and/or law. Another ground was that the Tribunal had erred in finding that the legislative scheme under the Home Building Act did not entitle orders to be made for restitution and/or reimbursement of monies paid. Mr and Mrs Field sought an order setting aside the Tribunal's determination dismissing the restitution claim and orders that Mr Dettman pay Mr and Mrs Field $320,971 in restitution for monies paid under mistake of law or alternatively $308,971 in restitution for monies paid under a mistake of fact.

The District Court's determination of the appeal

1. On 31 August 2011, the District Court (Sidis DCJ) dismissed Mr and Mrs Field's appeal and ordered them to pay Mr Dettman's costs of the appeal.

1. In relation to the restitution claim, the District Court noted that the Tribunal had found that Mr and Mrs Field had made no mistake of fact concerning Mr Dettman's licence and insurance status. This finding resulted from Mr Dettman's uncontradicted and unchallenged evidence of his conversations with Mr Field (at [38]). The District Court found that other evidence also supported the Tribunal's finding (at [39]). The District Court rejected Mr and Mrs Field's claim that they were mistaken in their belief that they were under a legal obligation to pay Mr Dettman or that Mr Dettman was legally entitled to payment. The District Court did not accept that there was any mistake on the part of Mr and Mrs Field concerning their obligation of payment to Mr Dettman (at [40]-[41]).

1. In relation to the claim that the Home Building Act entitled Mr and Mrs Field to reimbursement of the monies they had paid to Mr Dettman, the District Court held this claim was misconceived. The Home Building Act provided for the consequences to a builder who breached its terms. It did not provide that the building contract involved was a nullity or was void (at [46]).

Proceedings for certiorari to quash the District Court's determination

1. By proceedings under s 69 of the Supreme Court Act 1970, Mr and Mrs Field sought an order in the nature of a writ of certiorari to quash the determination of the District Court. Such proceedings are assigned to the Court of Appeal (s 48(2) of the Supreme Court Act). A determination of the District Court is liable to be quashed if it has been made on the basis of an error of law that appears on the face of the record of the proceedings, which includes the reasons expressed by the District Court for its determination (s 69(3) and (4) of the Supreme Court Act).

1. In the Further Amended Summons filed on 22 October 2012, Mr and Mrs Field pleaded seven grounds for certiorari. At the hearing in this Court, Mr and Mrs Field did not pursue five of the grounds, being grounds 2, 4, 5, 6 and 7, and instead proceeded only on grounds 1 and 3. Mr and Mrs Field sought and were granted leave at the hearing to amend ground 3. Grounds 1 and 3 (as amended) were as follows:

1.Her Honour Sidis DCJ erred in law in failing to find that the plaintiffs were entitled to claim restitution as they were unaware the contract with the defendant, which was not in writing and signed by the parties, was in breach of s 7 of the Home Building Act (the "Act"), which made the contract unenforceable by the defendant under s 10 of the Act.

3.Her Honour Sidis DCJ erred in failing to find Member Ringrose had been in error is dismissing the restitution claim where he had made no determination under sec 94(1A) of the Act that [it] was 'just and equitable' for the defendant to lawfully recover monies on a quantum meruit basis for works performed for those monies unlawfully received by him, in breach of sec 92(2) of the Act and misconstrued both the nature of the Plaintiffs' restitutionary claim and misconstrued the effect of sections 92(2) and 94(1A) of the Home Building Act 1989.

Ground 1: whether entitlement to restitution established

1. The finding of the Tribunal, which was upheld on the appeal on questions of law to the District Court, was that Mr and Mrs Field were not mistaken about Mr Dettman's licence or insurance status (pp 18-19 of the Tribunal's judgment of 20 October 2010 and [38]-[43] of the District Court's judgment). The finding concerned two of the three respects in which the contract between the parties did not comply with the Home Building Act. By ground 1 in the summons in this Court, Mr and Mrs Field sought to raise the third respect, claiming that the District Court had failed to find that Mr and Mrs Field were unaware that their contract with Mr Dettman, which was not in writing or signed by the parties, was in breach of s 7 of the Home Building Act and was unenforceable under s 10 of that Act.

1. The problem for Mr and Mrs Field in raising ground 1 is that they did not raise the subject matter of this ground in their appeal to the District Court. The appeal to the District Court under s 67 of the Tribunal Act was only against the Tribunal's decision on a question with respect to a matter of law. Mr and Mrs Field, in the Amended Summons commencing the appeal to the District Court, raised 31 grounds of appeal, but not one of those grounds was that the Tribunal had erred in law in failing to find that Mr and Mrs Field were entitled to claim restitution as they were unaware the contract with the defendant, which was not in writing and signed by the parties, was in breach of s 7 of the Home Building Act and was unenforceable under s 10 of that Act. The District Court was therefore not called upon on the appeal to determine this question.

1. There can be no warrant for this Court, in proceedings for relief or remedy in the nature of a writ of certiorari, to quash the determination of the District Court on the basis that the District Court failed to decide, on an appeal limited to questions of law, a question that the Court was never called upon to determine. Accordingly, this ground for certiorari fails.

Ground 3: whether there were "defences" to a restitution claim or a statutory right of action

1. Ground 3 claimed that the District Court and the Tribunal were each in error in dismissing Mr and Mrs Field's claim for reimbursement of monies paid to Mr Dettman. Senior Counsel for Mr and Mrs Field submitted at the hearing that Mr and Mrs Field were entitled to reimbursement in two ways: first, by way of restitution for monies paid under a mistake of fact and/or law and, secondly, by statutory right under s 92(2) (read with s 94(1A)) of the Home Building Act.

1. As to the first way, Mr and Mrs Field submitted that a payer, on establishing that monies were paid under a mistake of fact and/or law had a prima facie entitlement to recover the monies paid. It was accepted that, ordinarily, a person who receives such a payment (the payee) may raise any matter or circumstance which shows that retention of the payment would not be unjust, such as that the payment was made for good consideration, or, in reliance upon the payment, the payee, in good faith, has changed its position to its detriment (David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 at 379-380, 385 and Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380; (2012) 295 ALR 147 at [70]-[76], [182]-[183]). Circumstances sufficient to displace the prima facie entitlement are sometimes termed "defences": Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd at [71].

1. Mr and Mrs Field submitted, however, that the statutory scheme under the Home Building Act operated to preclude a payee who contracts to do residential building work in breach of the licensing, writing or insurance provisions of the Act, from raising any such "defences" to displace the prima facie entitlement of the payer to restitution. It was submitted that the Home Building Act only permits a contractor in breach of the Act to recover monies in respect of residential building work by way of a quantum meruit claim under s 94(1A) of the Act. The contactor's entitlement to recover monies is contingent upon a court or tribunal considering it just and equitable for the contractor to recover the money in respect of the work on a quantum meruit basis. It was submitted that to allow a contractor to retain monies paid under a mistake of fact and/or law regarding breaches of provisions of the Home Building Act, where the contractor has not claimed and a court or tribunal has not upheld a claim under s 94(1A), would be to circumvent the Home Building Act.

1. In this case, Mr Dettman did not make any claim under s 94(1A) and the Tribunal did not determine under s 94(1A) that Mr Dettman was entitled to recover money in respect of residential building work he had done on a quantum meruit basis.

1. It was submitted, therefore, that Mr Dettman was precluded from raising in defence of Mr and Mrs Field's restitution claim any other matter or circumstance that would make retention by him of the monies paid by Mr and Mrs Field not unjust. Hence, it was submitted, Mr and Mrs Field's prima facie entitlement became an absolute entitlement to recover the monies they had paid to Mr Dettman.

1. The fundamental weakness in this first argument is that Mr and Mrs Field were held by the Tribunal to have not established that they paid the monies to Mr Dettman under a mistake of fact and/or law regarding breaches of the provisions of the Home Building Act or the consequences of those breaches, and hence had not established a prima facie entitlement to an order for restitution of the monies they had paid to Mr Dettman. These findings were not successfully challenged on the appeal to the District Court. The grounds for certiorari raised in the summons and pressed at the hearing in this Court also do not challenge these findings.

1. The consequence is that the first way in which Mr and Mrs Field sought to put ground 3, namely that Mr Dettman was precluded from raising any "defence" to Mr and Mrs Field's restitution claim, fails because Mr and Mrs Field have not established their entitlement to restitution.

1. The second way it was submitted that Mr and Mrs Field were entitled to reimbursement of the monies they had paid to Mr Dettman was not by way of a restitution claim for payment under mistake of fact and/or law but rather by a statutory right under s 92(2) of the Home Building Act. Section 92(2) prohibits a person not only demanding but also receiving a payment under a contract for residential building work unless there has been compliance with the requirements for a contract of insurance and a certificate of insurance in relation to the residential building work. Contravention of the statutory prohibition is an offence. It was submitted that if a contractor receives payment in contravention of s 92(2), the payer has a right of action under the Home Building Act to recover the monies paid.

1. I do not agree that the Home Building Act gives a statutory right of action to recover monies paid to a person who has done uninsured residential building work.

1. The question whether contravention of a statutory provision is actionable at the suit of a person injured thereby is one of statutory interpretation. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Lord Browne-Wilkinson stated, at 731:

[A] private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.

1. In O'Connor v S P Bray Pty Ltd (1937) 56 CLR 464 at 478, Dixon J said:

In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law ... Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.

1. In that case, the relevant statutory provision prescribed that safety gear must be provided for all lifts excepting direct-acting lifts, and service lifts, in which no person travels. The High Court held that a person injured as a result of non-observance of the statutory duty imposed by the provision had a cause of action against the person responsible for the care, control and management of the lift.

1. In Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, the statutory provision required the occupier of a factory to securely fence all dangerous parts of the machinery therein and to constantly maintain such fencing in position and in an efficient state while the parts required to be fenced are in motion or are in use. A majority of the High Court held that contravention of the statutory requirement was actionable at the suit of a person injured thereby. Kitto J said at 404-405:

In the case of an enactment such as s 27(1), prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention: see Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204; 53 WN 71. At least this is so where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter: O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478. But at the outset of every inquiry in this field it is important, in my opinion, to recognize, notwithstanding the views expressed by some writers (see Mr G M Fricke's article 76 Law Quarterly Review 240), that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then "imputed" to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation ... .

1. The latter passage was referred to with approval in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 460-461 and Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 at [29].

1. In this case, the statutory provision upon which Mr and Mrs Field relied as conferring a private right of action to sue for damages for its contravention is s 92(2) of the Home Building Act.

1. Section 92(2) provides:

A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless:

(a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and

(b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract.

Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.

1. The subsection is clear as to the work it does. It is a statutory prohibition on specified conduct (demanding or receiving payment under a contract for residential building work) directed to a specified person (the person so demanding and receiving payment) in specified circumstances (where there is failure to comply with the requirements in s 92(2) regarding a contract of insurance and a certificate of insurance in respect of the residential building work). Contravention is sanctioned by a criminal penalty. However, the subsection does not have further work to do. It cannot be construed as giving to a person, who makes a payment to another person who receives the payment in contravention of the prohibition, a right of action to recover the monies paid. The subsection neither expressly nor by necessary implication gives such a statutory right of action to the payer.

1. In its express terms, subsection (2) does not impose a positive duty to take measures in the interests of the safety of others, or to observe prescribed conduct to protect others from personal injury. Rather, subsection (2) imposes a negative duty not to demand or receive payment under a contract for residential building work in the absence of a contract and certificate of insurance in relation to that work. The relationship created by the negative duty between the person enjoined and the person protected is not one which is recognised by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter.

1. Subsection (2) thereby differs from the statutory provisions considered in O'Connor v S P Bray Ltd and Sovar v Henry Lane Pty Ltd, where in each case the peril provided against was one of personal injury, the prescribed conduct in the statutory provisions was calculated to protect persons from personal injury, and the relationship existing between the person enjoined and person protected was one recognised at common law as giving rise to a duty in the former to take precautions for the safety of the latter.

1. The nature of the "peril" or "evil" against which persons are to be protected under s 92 of the Home Building Act is having residential building work which is uninsured. To protect persons from this peril, subsection (1) prohibits the conduct of doing residential building work in the absence of a contract and certificate of insurance in relation to that work. The nature of the conduct prescribed by subsection (2) is, however, different.

1. Subsection (2) prohibits a person who does uninsured residential building work demanding or receiving payment for it. This prescribed conduct does not directly protect persons from the peril of having uninsured residential building work; rather, it operates to prevent a person who does uninsured residential building work from being able to benefit financially by demanding or receiving payment for such work. Such a prohibition may have an indirect effect of encouraging persons to observe the prohibition in subsection (1) on doing residential building work without a contract and certificate of insurance in relation to the work, so that they can be paid for their work. But if they do not observe the prohibition in subsection (1) on doing uninsured residential building work, the prohibition in subsection (2) on the demanding or receiving of payment for uninsured residential building work will not protect persons from the peril of having uninsured residential building work. There is a disjunct between the nature of the peril against which persons are to be protected (having uninsured residential building work) and any financial harm persons might suffer by a contravention of the prohibition in subsection (2) (having to pay for uninsured residential building work).

1. Hence, consideration of the nature of the peril, and the nature of the conduct prescribed by s 92(2), does not support the drawing of an inference that the legislature intended that persons whose individuals interests are protected by the prohibition on the demanding or receiving of payment for uninsured residential building work should have a personal right to sue for damages if that prohibition is contravened.

1. There are also other statutory indicators against drawing the inference that contravention of s 92(2) gives rise to a personal right to sue for damages. The statute expressly provides for a criminal sanction for the enforcement of subsection (2) (being 1,000 penalty units for a corporation and 200 penalty units in any other case).

1. The statute also expressly specifies in s 94 the consequences of a failure to insure the residential building work under s 92(1). Section 94(1) operates to disentitle the contractor, who did the residential building work without compliance with s 92(1), to damages, or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, in relation to that work, or to recover money in respect of that work under any other right of action (including a quantum meruit). Section 94(1A), however, operates to give a limited entitlement to the contractor to recover money in respect of work done without compliance with s 92. It provides:

Despite section 92 (2) and subsection (1), if a court or tribunal considers it just and equitable, the contractor, despite the absence of the required contract of insurance, is entitled to recover money in respect of that work on a quantum meruit basis.

1. The focus of both s 94(1) and (1A) is on the contractor who does the insured work and on that contractor's lack of entitlement to redress, except in the limited manner specified in s 94(1A). Neither s 94(1) nor (1A) give any entitlement to the other party to the contract to take action against the contractor who does the uninsured work, including giving any right to recover money paid under the contract to the contractor.

1. These express provisions for the enforcement of the requirements in s 92(2) provide grounds for the countervailing inference of a legislative intention that, in the event of contravention of s 92(2), the specifically provided remedies are the only remedies.

1. The upshot is that the Home Building Act does not give a statutory right of action to a person to recover money paid to a contractor who did uninsured residential building work and who received payment in contravention of s 92(2).

1. The District Court was therefore correct in determining that Mr and Mrs Field's claim, that the Home Building Act mandated that monies they paid to Mr Dettman should be reimbursed, was misconceived (at [44]-[46]). The Tribunal was also not in error in following the decision in Alexander v Gregoriou [2010] NSWDC 15 where Acting Judge Hungerford found at [94] that "the legislative scheme itself of the Home Building Act does not entitle" recoupment of monies paid in contravention of provisions of the Home Building Act (at pp 21-22 of the Tribunal's decision of 20 October 2010).

1. The second way in which Mr and Mrs Field put ground 3, therefore, fails.

Outcome and proposed orders

1. Mr and Mrs Field's two grounds for certiorari both fail and the Further Amended Summons should be dismissed. Costs should follow the event. I propose the following orders:

(1)   The Further Amended Summons is dismissed.

(2)   The plaintiffs are to pay the defendant's costs of the proceedings.

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Decision last updated: 03 June 2013