Morley v See

[2015] QCATA 127

CITATION:	Morley v See [2015] QCATA 127
PARTIES:	Wade Morley (Applicant/Appellant)
v
Andrew See (Respondent)

APPLICATION NUMBER: APL127-15

MATTER TYPE: Appeals

HEARING DATE: 17 July 2015

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM
Member Traves

DELIVERED ON: 25 August 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Application for leave to appeal granted.

2.    The appeal is allowed.

3.    The decision of 2 March 2015 is set aside.

4.    The appellant is not required to repay the respondent any of the amount paid to him by the respondent in relation to this matter. 

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE - whether s42 of the Queensland Building and Construction Commission Act 1991 (Qld) applied - whether the contract between the parties was for “building work” within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the work was excluded from the definition of “building work” in Schedule 2 by Schedule 1AA, Item 11 of the Queensland Building and Construction Commission Regulation 2003 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3), s 147(2)
Queensland Building and Construction Commission Act 1991 (Qld) s42, Schedule 2
Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 1AA, Item 11

Moose Plastering Pty Ltd v Habul [2014] QCATA 354
Pickering v MacArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

Applicant:	Wade Morley
Respondent:	Andrew See

REASONS FOR DECISION

1. Wade Morley carried out certain work relating to the unblocking and repair of a stormwater drain for Andrew See on 15 October 2013. He charged $4,323 for the work which included $1,430 for re-paving the affected area. Although Mr See had asked Mr Morley to arrange for the re-paving to be done, Mr See paid the paving contractors directly.  

2. This dispute relates to the remainder of the work - the unblocking and repair of a stormwater drain - for which Mr Morley charged $2,893.

3. At the time Mr Morley did the work for Mr See he did not hold a Plumbing and Drainage trade contractor’s licence under the Queensland Building and Construction Commission Act 1991 (Qld).

4. The Tribunal found on 2 March 2015 that Mr Morley was required to hold a contractor’s licence to do the relevant work because the work was “building work” within the meaning of the QBCC Act. The Tribunal found it was “building work” because it constituted “drainage work in connection with a building” within the meaning of Schedule 2 of the Act.

5. Being unlicensed, the tribunal found that Mr Morley was in breach of s 42 of the QBCC Act and was therefore only entitled to recover “reasonable remuneration” for the work within the meaning of s 42(4) of the Act. Mr Morley was ordered to repay part of the fees paid to him by Mr See for doing the work.

6. Mr Morley has applied for leave to appeal that decision.

Leave to Appeal

1. As this is an appeal from a decision of the Tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

   [1]QCAT Act s 142(3)(a)(i).

   [2]Pickering v McArthur [2005] QCA 294 at [3].

2. Essentially the issue is whether the work performed by Mr Morley was “building work” for which he required a licence under the QBCC Act. This requires consideration of the relevant definitions in the statute and accompanying regulations and whether the work performed falls within them.

3. Mr Morley argues that relevant definitions and exclusions within the Act and Regulations were incorrectly applied and, as a consequence, he was unable to recover what he charged for the work he carried out.[3] For the reasons below, the decision of 2 March 2015 was in error and Mr Morley would suffer substantial injustice if leave were not given. Accordingly, leave to appeal is granted.  

   [3]QBCC Act s 42(3).

The Statutory Framework

1. Section 42(1) of the QBCC Act provides that a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under the Act. A person who does building work while unlicensed is in breach of the statute and is not entitled to enforce the contract.[4] However, an unlicensed builder may still claim a reasonable remuneration, subject to the limitations in s 42(4).

   [4]QBCC Act s 42(3).

2. “Building work” is defined in Schedule 2 of the Act by an exhaustive list of various types of work that constitute building work. After the categories of “the erection or construction of a building” and “the renovation, alteration, extension, improvement or repair of a building” is:

   (c) the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building.

3. The definition concludes however with a proviso which applies to all categories and provides:

   “but does not include work of a kind excluded by regulation from the ambit of this definition.”

4. Section 5 of the Regulation provides that, for the purposes of the definition of building work in Schedule 2, the types of work stated in schedule 1AA is not building work.

5. Item 11 of Schedule 1AA of the Regulation provides that the “construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, other than works connecting a particular building to a main of the system or drain” is not building work.

6. The work in question involved the unblocking and consequent repair of a straight section of PVC pipe forming part of the stormwater system in Mr See’s yard. This is the repair of a “stormwater drain”. It is, therefore, excluded work.

7. This conclusion is consistent with the general tenor of the licensing scheme under the QBCC Act in relation to plumbing and drainage. The licensing scheme draws a distinction between the installation of a stormwater system in connection with a building, which requires a license, and its repair, which does not.

8. Mr See referred the Appeal Tribunal to the definition of “building work” in Schedule 2 of the QBCC Act, which includes “(c) the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building.” Mr See argued that the work carried out by Mr Morley was “drainage work in connection with a building”.

9. “Drainage” is not defined in the Act. Mr See submitted that, in defining “drainage” we should take account of the QBCC Regulations, Schedule 2 titled “Classes of Licence and Licence Requirements.” For the Licence Class, “Drainage”, the scope of work includes:

   “Installing, commissioning, maintaining and testing above and below ground waste water, stormwater and sanitary drainage systems,…”

10. As the legislative scheme specifically excludes the repair of a stormwater system from the definition of “building work”, as a matter of statutory construction, the repair could not be seen to constitute “drainage work” and therefore “building work” within the meaning of the Act.  

11. Mr Morley raised an alternative argument.  Under the Act, subject to some exceptions, building work to a value of less than $3,300 is not regulated.[5]  The application of this exclusion in Mr Morley’s favour was complicated by the fact that the work involved re-paving the area affected by the repair. This work was undertaken by independent paving contractors. The issue is whether the contract between Mr Morley and Mr See included this work or whether Mr See entered into a separate contract as principal with the paving contractors. When Mr Morley advised Mr See that the job would require re-paving, Mr See asked him to arrange the re-paving and to create one invoice for the entire job, including the re-paving. In view of this, the contract between Mr Morley and Mr See included the re-paving. The fact Mr See ended up paying the paving contractors directly does not alter our view. It follows that the exclusion for building work for $3,300 or less does not apply. 

    [5]QBCC Regulation, Schedule 1AA, Item 2, “Work to a value of $3, 300 or less”.

12. Underlying Mr See’s arguments relating to Mr Morley being unlicensed, seems to be his view that the amount Mr Morley invoiced for the work was excessive. However the challenge to Mr Morley’s charges was that he needed to be, but was not, licensed. The issue of a reasonable sum for the work on the basis that Mr Morley need not be licensed (and that his charges were not constrained by s 42(4) of the QBCC Act) was not squarely raised.

13. In conclusion, we find that Mr Morley did not require a license to do the work and was not prevented on this basis from recovering what he charged for the work.

14. The appeal is allowed. The order of the learned Member is set aside. We substitute an order that Mr Morley is not required to repay any of the amount paid to him by Mr See in relation to this matter.