Barclay Homes (Australia) Pty Ltd v Fair Trading Tribunal & Anor [2001] NSWSC 711 | Case summary

1 MASTER: By summons filed 25 May 2001 the plaintiff seeks firstly an order that the decision of the Fair Trading Tribunal (the Tribunal) in proceedings BU 2000/3067 that s 94 of the Home Building Act 1989 (as amended) does not operate retrospectively made on 27 April 2001 by Deputy Chairperson Ian McDonell be set aside; secondly, an order that the plaintiff's action be remitted to the first defendant for determination according to law. The plaintiff relied on the affidavit of Brian Keith Hones sworn 15 June 2001. The second defendant Stephen Miller relied on his affidavit sworn 12 July 2001. The Fair Trading Tribunal, the first defendant did not appear and did not file a submitting appearance. The plaintiff Barclay Homes (Australia) Pty Ltd is the builder. The second defendant Stephen Miller is the owner of the premises upon which home renovations took place. 2 An appeal to this court from the Referee's decision is only in relation to a question of law, (s 61 Fair Trading Act 1998). A party to proceedings before the Tribunal may appeal to this court on a question of law which includes (but is not limited to) an order affirming or setting aside the decision of the Tribunal, and an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of this court. 3 The Tribunal Member determined a preliminary question with the consent of the parties. The preliminary question was: 1. Whether the amendments to section 92 and 94 of the Home Building Act (1989) , being amendments 1999 No 26 Schedule 1 [9 and 11] respectively, operate retrospectively." 4 On 27 April 2001 the Deputy Chairman decided that these amendments did not act retrospectively. 5 The chronology of the contract and the obtaining of insurance was common ground. They are: (a) On 23 September 1998 the applicant and respondent executed a home building contract. (b) The Home Owners Warranty insurance (HOW) was not annexed to the contract. (c) On 29 September 1998 six days later the respondent builder applied for the relevant insurance. (d) On 30 September 1998 HOW issued a policy insuring the works. 6 Hence the insurance policy was issued seven days after the contract was executed. 7 Section 92 of the Home Building Act 1989 read: "92 Contract work must be insured (1) A person must not contract to do any residential building work, unless a contract of insurance that complies with this Act is in force in relation to the proposed work. Maximum penalty: 100 penalty units. (2) A person must not contract to do any residential building work unless a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, is attached to the contract. Maximum penalty: 100 penalty units." 8 At the time that the contracts were exchanged and a policy of insurance was obtained s 94 of the Home Building Act 1989 read: "94 Effects of a contract of contravention (1) A person who enters into a contract in contravention of section 92(1) or 93(1); (a) is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract or to recover money in respect of work done under the contract under any other right of action (including a quantum meruit action), but (b) is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person. (2) This section does not affect the liability of any such person for an offence against a provision made by or under this or any other Act." 9 So by operation of subs 92(1) of the Home Building Act 1989, a person must not contract to do any residential building work unless a contract of insurance complying with that Act is in force in relation to the proposed work. By subs 94(1)(a) of the Act, a person who enters into a contract in contravention of subs 92(1) "is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract or to recover money in respect of work done under the contract under any other right of action (including a quantum meruit action). If these sections apply to the builder, he is liable for damages but he cannot enforce any remedy he may have for breach of contract. Nor can he recover any money for work he has done. 10 In Casa Maria Pty Limited v Trend Properties Pty Limited (NSWCA, unreported 18 December 1998) the Court of Appeal was critical of the operation of ss 92 and 94 (as reproduced above). The issue in Casa Maria was whether the contract was "to do any residential work". Mason P held that by reading together ss (1) and subs (2) of subs 92, one ascertains that the contract of insurance required to be in force by s 92(1) must be in force at the time a person contracts "to do any residential building work". Entry into a contract in contravention of s 92(1) entails the sweeping and dire consequences spelled out in s 94, regardless of whether the common law would have been so harsh and unyielding - see Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215. According to Mason P as s 92(1) was both penal and confiscatory of legal rights, it should be construed strictly. 11 Fitzgerald AJA was also critical of s 94(1). His honour stated that taken literally, subs 94(1) has an absurdly wide application having regard to the definitions of "dwelling" and "residential building work" in subs 3(1) of the Act. His Honour cited the injustice of which the Act is capable which illustrated by the present case, is that the appellant seeks to deny the respondent five home units worth about $1 million to which it is plainly entitled according to the terms of their bargain. According to the appellant, one aspect of that bargain obliged the respondent to do residential building work on the building which contains those units and two other units which have since been sold. The appellant does not dispute that the work was competently done at the respondent's expense, or that the respondent has performed all other obligations imposed upon it including paying $1,125,000 to the appellant. The Court of Appeal held that the contract was not one for residential building work. 12 The Home Building Act 1989 was repealed and replaced by the Home Building Amendment Act 1999 which commenced on 30 July 1999. The plaintiff submitted that these provisions of ss 92(1) and 94 act retrospectively. If these provisions have retrospective operation, the plaintiff will be entitled to claim damages and the work if commenced after 30 September 1998 would be considered to be uninsured work. 13 Section 92(1) states: "(1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that 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: 100 penalty units." 14 Section 94 reads: "94. Effect of failure to insure residential building work

(3) Residential building work that is uninsured work at the time the work is done ceases to be uninsured work for the purposes of this section if the required contract of insurance for the work is subsequently obtained." 15 The grounds of appeal are set out in the summons. They are firstly, that the Deputy Chairperson erred in law when he held that the operation of s 94 of the Home Building Act 1989 in its unamended form gave the second defendant a right in law, which was an immunity from suit; secondly, that the Deputy Chairperson erred in law when he held that the amended version of s 94 was not drafted in terms which gave rise to the interpretation that the legislature intended it to have retrospective effect; thirdly, that the Deputy Chairperson erred in failing to find that in the surrounding circumstances of the amended Act and its express provisions it was intended to operate retrospectively and that the presumption against retrospective operation was rebutted; and fourthly, that the Deputy Chairperson failed to give due consideration to the manifest injustice which would result if the presumption against retrospectivity were not rebutted. 16 The relevant part of the reasoning of the Deputy Chairperson's decision is contained at paragraphs 41 to 46 where he states: "41 The conclusion sought to be drawn by the respondent from the use by the parliamentary counsel of present tense in the drafting of section 94(3) arises by way of inference and does not directly address the issue of the date of intended operation of the amendment in a sufficiently clear manner such as to rebut the presumption against retrospectivity. 42. If the Tribunal is then to infer retrospectivity and rely on the principles in Worrall , it must find 'necessary intendment' in the surrounding circumstances which would leave to the determination of a single position where in a contrary view would be wholly unreasonable. 43. The intention of the legislative authority is not clear and where the result of retrospectivity would lead to the deprivation of an immunity from suit, the Tribunal finds that there must be clear and unequivocal intention found to deprive the homeowner, of the benefit of the immunity. 44. The seriousness of the action of taking away valuable legal entitlements including an immunity from suit is of such seriousness that in the absence of express legislative intention the intent and will of the legislature must be otherwise so clear as to allow for no other interpretation of the statute. 45. The common law and the Interpretation Act 1987 when read together result in a finding by the Tribunal that the presumption against retrospectivity must here be upheld. 46. While it is acknowledged that the outcome in the instant case is harsh, nevertheless the finding of the Tribunal must be that the respondent's case fails." 17 The High Court has stated that perhaps no rule of construction is more firmly established that this - that retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter or procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only - see Re Athlumney; Exparte Wilson 2 QB 547 at 551-552 per Wright J cited in Mathieson v Burton (1971) 124 CLR at 22-23 per Gibb J. As the High Court stated there are many authorities for the above proposition. 18 The defendant submitted that Walton v Baffsky [1975] 2 NSWLR 565 at 568 was anomalous to the present case. Walton involved an amendment to the Money-lenders and Infants Loans Act 1941. The appellant (borrower/defendant) appealed the decision of Samuels J at first instance in striking out the borrower defendant's first pleas, which alleged that the respondent (plaintiff/money-lender) was not at the date of the loan, the holders of a licence required by the statute, and that pursuant to the statute, the plaintiff money-lender was not entitled to recover money lent by him. Between the date of the loan and the date of the proceeding an amendment to the Act provided that it ceased to apply to loans in excess of $10,000. The loan sought in the proceedings was in excess of that amount. It was argued before the Court of Appeal that the freedom from having to pay a loan was not a right. This argument was not accepted. It was held by Hutley JA at 568 that the word 'right' can cover what is more accurately described as an immunity. 19 In Walton at 568 Hutley JA cited a passage from Gardner v Lucas (1878) 3 App Cas 582 where Lord Blackburn stated that the effect of an amendment: "would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid - make an instrument which has no effect at all and from which the party was at liberty to depart as long as he pleased, binding - … the prima facie construction of the Act is that it is not to be retrospective, and it would require strong reasons to show that is not the case." 20 The Deputy Chairperson relied upon the decision of Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28. In Worrall Barton J found guidance from the words of Lord Hatherley in Pardo v Bingham LR 4 Ch at 740 where he said that "We must look to the general scope and purview of the Statute, and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that Legislature contemplated. If doing this, we find that though no express words are found, yet the necessary intendment of the language is retrospectivity, the task is at an end. Necessary intendment only means that the force of the language in its surroundings carries such strength of impression in one direction, that to entertain the opposite view appears wholly unreasonable" - see also per Lord Eldon in Wilkinson v Adam 1 V & B 422. 21 The Deputy Chairperson considered s 30 of the Interpretation Act 1987 which relevantly states: "Section 30 Effect of amendment or repeal of Acts or statutory rules (1) The amendment of repeal of an Act or statutory rule does not: (a) … (b) affect the previous operation of the Act of statutory rule or anything duly suffered, done or commenced under the Act or statutory rule or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule … … and any … … … legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed." 22 The high point of the plaintiff's submission is the reference to the second reading speech by Mr Watkins, Minister for Fair Trading and Minister for Sport and Recreation of 2 June 1999. The relevant portion of the speech is as follows: "As mentioned previously, the Act provides that a person must not contract to do any residential building work or supply a kit home costing in excess of $5,000 unless a contract of insurance is in force. If the contractor fails to do this there are serious consequences for the contractors. Section 94 of the Act provides that if a contractor fails to have insurance in place at the time the contract is entered into, he or she cannot recover any money for work done. The policy behind section 94 is to deter uninsured work, having regard to the possible significant detriment that might be suffered by the client due to lack of insurance cover. However, the strict operation of section 94 has had unintended consequences. Cases have been brought to the attention of the Department of Fair Trading involving contractors who have failed to provide insurance at the date of contracts but have taken it out some time thereafter. Subsequently, a dispute has arisen and the client has relied on the strict terms of section 94 to deny payment to the contractor even though the work was not defective and insurance cover was in place. While consumers must be protected against uninsured operators, the strict terms of section 94 may operate unfairly where there is an intention to insure, yet the supply of the certificate of insurance cover has not been contemporaneous with the signing of the contract. The operator of section 94 was the subject of criticism by the New South Wales Court of Appeal in the 1998 case of Casa Maria Pty Ltd v Trench Properties Pty Ltd . The court expressed the view that there is a need for some attention to be given to the present form of the section if it is not to become an 'instrument of oppression'. To address the existing consequences of section 94 the bill introduces amendments which provide that a licensee is not entitled to enforce the contract, or recover moneys for work done, until the licensee obtains insurance covering that work. In light of this change it would be inconsistent for the Act to continue to provide that insurance must be in place at the date of the contract. The Act will therefore be amended to provide that a person who contracts to do any residential building work or supply a kit home must not commence that work or supply the kit unless a contract of insurance is in place." 23 Apparently, a proposed further amendment to these sections are currently before Parliament. Even the second reading speech does not express the view that the amendments should take effect retrospectively. It states that it would be inconsistent for the Act to continue "to provide that insurance must be in place at the date of one contract." 24 The wording of the amendments are in the present tense. Schedule 1 of the Home Building (Amendment) Act 1999 did not make any specific provisions as to when ss 92 and 94 were to take effect. The language of the sections is not expressed in such a way that it is fairly capable of both prospective and retrospective interpretation. It is expressed in present tense and is prospective: Wilson. Even if I am wrong and it is considered that the language is capable of either interpretation, it should be interpreted as prospective. As stated by the Deputy Chairperson both the common law and an interpretation of the reading of s30 of the Interpretation Act 1987 indicate that the legislation is to be read prospectively. As recognised in Walton the homeowner would lose a right which more accurately described as an immunity. The effect of the amendment would make an instrument namely an insurance policy which had no effect at all now a binding instrument. In my view ss92 and 94 should be read prospectively. 25 The Deputy Chairperson's decision was correct and that there is no error of law. I also agree with the Deputy Chairperson's decision that the decision is harsh but that there are further amendments before Parliament. The appeal is dismissed. The summons is dismissed. 26 Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant's costs. 27 The Court orders that:

Barclay Homes (Australia) Pty Ltd v Fair Trading Tribunal & Anor

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