Riteway v Baulderstone - [1998] QSC 167

THE SUPREME COURT

OF QUEENSLAND

No. 1987 of 1997
Brisbane

Before White J

[Riteway v Baulderstone & Anor.]

BETWEEN:

RITEWAY CONSTRUCTIONS PTY LTD
(ACN 067 537 6510)
Plaintiff
AND:

BAULDERSTONE HORNIBROOK PTY LTD
(ACN 002 625 130)
First Defendant
AND:

THE CROWN IN RIGHT OF THE STATE OF
QUEENSLAND TO THE DIRECTOR-GENERAL,
ADMINISTRATIVE SERVICES DEPARTMENT
Second Defendant
AND:

MONARCH FRAME & ROOF PTY LTD
(ACN 071 296 725)
Third Party

CATCHWORDS: Monies owing - written sub-contract agreement - unlicensed company - unjust enrichment.

Attorney-General (NSW) v The Brewery Employees Union of NSW (1908) 6 CLR 469.
Deputy Federal Commissioner of Land Tax v Hindmarsh (1912) 14 CLR 334.
Baker v The Queen (1983) 153 CLR 338.
Fablo Pty Ltd v Bloor (1983) 1 Qd R 107.
R v Braithwaite [1983] 1 WLR 385.
J.C. Scott Constructions v Mermaid Waters Tavern Pty Ltd. [1984] 2 Qd R 413.
Pavey & Matthews Pty Ltd v Paul (1986) 169 CLR 221.
Gino D’Alessandro Constructions Pty Ltd v Powis [1987] 2 Qd R 40.
Frendo v Secretary, Department of Social Security (1987) 77 ALR 682.
Carborundum Realty Pty Ltd v RAIA Archicentre Pty Ltd (1993) 25 ATR 192.
Pohlmann v Harrison [1995] 2 Qd. R. 59.
Marshall v Marshall CA No. 9365 of 1996.
Queensland Building Services Authority Act 1991 ss.3, 5, 42, 101.
Queensland Building Services Authority Regulation 1992, s.3A.

Counsel:Mr B O’Donnell QC for the plaintiff
Mr R Douglas for the first defendant

Solicitors:McCullough Robertson for the plaintiff
Minter Ellison for the first defendant

Hearing Date: 18 August, 1998

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 28 August 1998

By order of Derrington J made 6 July 1998 certain issues were set down for determination prior to trial in respect of this action. They concern the proper construction of s.42(3) of the Queensland Building Services Authority Act 1991. Mr O’Donnell QC for the plaintiff (“Riteway”) at the commencement of the hearing proposed amending the questions for determination as set out in that order. He tendered a proposed amended statement of claim in which any claim to monies due and owing pursuant to a certain sub-contract was recognised as precluded by s.42 and based the claim upon unjust enrichment. In the light of the amended pleading Mr R Douglas for the first defendant (“Baulderstone”), the applicant in this proceeding, did not oppose the reformulation of the question.

The Question
The following is the question of law to be determined:

“Does s.42(3) of the Queensland Building Services Authority Act 1991 (as amended) have the effect of precluding a sub-contractor who has carried out building work without holding a contractor’s licence of the appropriate class from recovering from the head contractor reasonable remuneration for the work carried out on the basis of unjust enrichment, in circumstances where the head contractor has accepted the benefit of that work?”

Background

Although expressed objectively it may put the question in context to state briefly the relationship between the…

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.

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Details

Case: [1998] QSC 167
Decision Date: 28 August 1998

CaseChat Overview and Summary

Riteway Constructions Pty Ltd brought an action against Baulderstone Hornibrook Pty Ltd, the Crown in Right of the State of Queensland to the Director-General, Administrative Services Department, and Monarch Frame & Roof Pty Ltd. Riteway, an unlicensed sub-contractor, had entered into a sub-contract with Baulderstone for the installation of partitions and ceilings in a hospital. Riteway completed the work but had not held a relevant contractor’s licence under the Queensland Building Services Authority Act 1991 at the time the sub-contract was entered into. Riteway sought to recover reasonable remuneration for the work carried out on the basis of unjust enrichment. The central legal issue was whether s.42(3) of the Act precluded such a claim. The court examined the statutory language, relevant precedents, and the policy of the Act. It concluded that s.42(3) did not preclude a claim based on unjust enrichment where the head contractor had accepted the benefit of the work. The court found that only contractual claims were precluded by the section, and Riteway was entitled to recover reasonable remuneration from Baulderstone.

The court ordered that Riteway was entitled to recover reasonable remuneration for the work carried out under the sub-contract. The parties were to lodge and exchange written submissions on the question of costs within fourteen days of the judgment.

Orders