CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD

15 of insurance required to be in force by s92(1) must be in force at the time a person contracts "to do any residential building work". Entry into a contract in contravention of s92(1) entails the sweeping and dire consequences spelled out in s94, regardless of whether the common law would have been so harsh and unyielding (cf Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215). Being

20 both penal and confiscatory of legal rights, s92(1) should be construed strictly.

As the appellant points out, s92(1) prohibits the entry into a legally binding commitment which entails a promise "to do any residential building work". This involves more than characterising a particular document taken as a whole and determining whether its essence is the proscribed commitment. I would therefore

25 teject the respondent's alternative submission (s7) that relies upon the undoubted fact that the substantial object and purpose of the arrangement recorded by the Deed of 6 June 1997 is not directed toward the performance of any building work. But this conclusion only reinforces the penal stringency of the legislative scheme.

30 'Pt2 of the Home Building Act 1989 contains the scheme of regulation of residential building work and specialist work. It casts light upon what is meant by contracting "to do" residential building work or specialist work. The key requirement is the holding of an appropriate licence (s4). Only those with the fitness, ability and capacity to carry out the contracts for which a licence is

35 required are intended to be licensed (cf s19-s21).

A contract under which the holder of a licence undertakes to do, in person, or by others, any residential building work or any specialist work must be in writing and contain the particulars specified in s7(2) (see s6(1)(a)). (There are presently irrelevant exceptions in s7(3) and s7(4).)

(a) the names of the parties, including the name of the holder of the licence shown on the licence, and (b) the number of the licence, and

45 (c) a sufficient description of the work to which the contract relates, and (d) any plans and specifications for the work, and (e) the contract price if known, and (f) any statutory warranties applicable to the work

The reference in s6(1)(a) to doing work "in person, or by others " makes it

50 plain that the obligations in s7 cannot be avoided merely by committing to procure a third party to perform. But s7(2)(c) and s7(2)(d) clearly envisage a

level of particularity that must be achieved before a contract "to do" the relevant work may lawfully be entered into, as well as requiring that it be properly documented. (By "lawfully", I refer to that which does not involve an offence under s7A, not that which might lead to unenforceability under s10.)

In my view this reasoning informs the proper construction of s92(1). S92(1) does not contain the words "in person, or by others", but the absence of those words merely heightens the need to construe the provision stringently and in context. The context is a scheme of compulsory insurance covering aspects of the actual performance of the contract "to do any residential building work".

Windeyer J held that none of the commitments undertaken by the respondent under the Deed of 6 June 1997 entailed a contract to do residential building work. His Honour did not confine himself to cl5.6, but neither did he attempt to characterise the Deed as a whole. Rather, he examined the presently relevant commitments jointly and severally, construing the several commitments in their proper context. He held that:

In this case, where under the agreement: the extent of the work was not known; there were no plans for it, there was no price to be paid for it, and there was no obligation on the party doing the work to do particular work; the obligation to pay for the work which was, done, was on the party obliged to have the work done; and the actual builder was intended to be the licence holder; I do not consider the agreement to be a contract to which the requirements of s4, s7 or s92 of the Act could apply or do apply.

It is to be noted that the respondent's promised "contribution" as Development Manager was to carry out "such renovation works as the Development Manager determines is necessary to effectively market the Units, which may include" (the types of work indicated in the balance of cl5.1.6). The warranty in cl5.6 precluded the respondent from carrying out the renovations itself (there being no suggestion that the respondent was intended to become or had the capacity to become a licensed builder). And cl5.11 required all work undertaken to be in accordance with plans and specifications approved by the relevant authority. The combination of discretion reserved to the respondent, lack of specificity, intention to prepare and have approved plans and to use a licensed builder are all invoked by the respondent in submitting that, as between the appellant and the respondent, the particular contract did not fall within s92(1) when entered into. This interpretation would not defeat the scheme of Pt6 (Insurance), because s96 actually imposes the duty of obtaining insurance upon those who do residential building work otherwise than under a contract.

There is force in this argument. However, the difficulty in accepting it lies, in an earlier part of the judgment appealed from. Windeyer J found the following established by the evidence:

Some of the work done involved the repairing, renovation and decoration of a dwelling; some of the work done within that description was work which had to be done to obtain the strata sub-division; Mr Clarke considered that the work which was done was necessary for the effective marketing and selling of the units; and Trend, through Mr Clarke, supervised the carrying out of the work and its co-ordination. It follows from this that while counsel for Trend argued that it was Trend who determined what, if any, work was to be done, as it was under no contractual obligation to do any building work at all, that is not the case, because the obligations of Trend under the contract to obtain strata sub-division turned out to require renovation and repairs to be done.

URJ CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD (Mason P) 3

For these reasons I cannot accept the respondent's submission (s4) that the respondent would not have been in breach of the Deed if it had failed to do any building work. Accordingly, I agree with Fitzgerald AJA that the challenge to the first part of the judgment below is sustained. I would add that this points to the need for some further attention to be given to the present form of the Act if it is not to become an instrument of oppression.

However, Windeyer J also rejected the appellant's case because of cl7(1)(f)(iii) of the Home Building Regulation 1990, which was the regulation operative at the relevant time. In my view he was correct to do so.

The definition of "residential building work" in s3 excludes work that is declared by the regulations to be excluded. C17(1)(f)(iii) excluded:

(f) the supervision only of residential building work:

(iii) by any other person, if all the residential building work is being done or supervised by the holder of a licence authorising its holder to contract to do that work.

Windeyer J held in the alternative that this regulation applied, with the consequence thalt the duty to insure was not engaged. In his view it was perfectly clear that the respondent was not contracting to do the work itself, but to have it done by a licensed builder under its supervision (cl5.6). I agree with this analysis. At its highest, the respondent contracted to have residential building work done, and done in a proper and workmanlike manner (see also cl5.10). But cl5.6 was an express warranty to employ or retain the services of a licensed builder to carry out the renovations, coupled with a promise that at all relevant times such builder would be "under the immediate direction and control" of the respondent. It is not without relevance that the respondent is described as the "Development Manager" in the Agreement. What I have just described fell within the exempting regulation, because the entirety of the work contracted to be done which would otherwise have constituted "residential building work" was to be effected by a licensed builder, with the respondent adopting a purely supervisory role. It is irrelevant that some of the wider tasks assumed under the contract may have involved co-ordination as distinct from supervision (cf the distinction in the definition of "residential building work" in s3). In some factual circumstances "co-ordination" and "supervision"' may entail different activities. But in the present case I can see no evidence of the respondent assuming a broader role than supervision qua the building work. I have not overlooked the passage commencing "Some of the work done" set out above, but I do not understand Windeyer J to have been turning his mind to this distinction (or absence thereof) in this part of his judgment.

The appellant disputes that the exempting regulation has any application to s92. This is based on the phrase "is to be done" in cl7(1)(f)(iii). The argument is that this part of the regulation is only engaged during the time that the supervision occurs, whereas s92(1) requires insurance to be held, at latest, when the contract to do residential building work is entered into. In my view this is far too sophisticated a reading of the relevant part of a regulation (cl7) which, when read as a whole, is expressed with universality. This is an example of a statutory provision using words in the present tense without any temporal connection: see generally Logan Park Investments Pty Ltd v Director of Public Prosecutions (Cth) (1994) 122 FLR 1 at 3.

It is therefore unnecessary to consider the alternative argument addressed by Fitzgerald AJA, although as presently advised I have no reason to disagree with his Honour's analysis. Nor is it necessary to address the respondent's notice of contention which sought to construe s94 narrowly.

Meagher JA This is an appeal by an unsuccessful joint venturer from a judgment of Windeyer J.

Casa Maria Pty Ltd owned a block of flats at King's Cross. It entered into a written agreement with Trend Properties Pty Ltd to strata, develop and sell those flats. Under the agreement Casa Maria, as owner, was to get a fixed amount for the sale of each flat when converted to strata title. Trend was to bear the costs of the restoration work and of whatever was necessary to obtain the strata sub-division and was to be entitled to the balance of the sale moneys after payment of the owner's fixed amount. Casa Maria is refusing to perform its obligations under the agreement, notwithstanding that Trend Properties has performed all its.

The reason advanced by Casa Maria for not performing its contractual duties is that allegedly s94 of the Home Building Act 1989, precludes Trend Properties from suing for damages (or taking any other form of legal action), Trend Properties having committed a breach of the Act (s92) by doing residential building work without cover of insurance. If Casa Maria's contentions be correct, it will have received its full contractual entitlement, of $1,125,000 and will, in addition, retain five units worth about $1,100,000, on which Trend Properties has done about $300,000 worth of work. Trend Properties, on the other hand, will have precisely nothing.

The agreement, which was dated 6 June 1997, recited that the parties wished to carry out an undertaking of the following notice:

"the business of the provision of the property, the obtaining of all necessary approvals from South Sydney Council, the strataing of the Property, the renovation of the Property, promotion, marketing and sale of the Units to be undertaken pursuant to the terms of this Deed"

Trend Properties was called the "Development Manager".

The most important part of the agreement is cl5, which is (in part) in the following terms:

5.1 The Development Manager shall provide consultancy advice and expertise in relation to the residue of matters relating to the --- Undertaking excluding those of the Owner which without limiting the generality of the foregoing shall include:

5. 1. 1. the giving of notices to all tenants to enable vacant possession of the Property;

5.1.2. preparation of the linen plan of strata sub-division;

5.1.3. completion of condition of development consent;

5.1.4. registration of the Linen Plan of Strata subdivision by the Land Titles Office;

5.1.5. obtaining necessary approvals for renovation works;

5.1.6 carry out such renovation works as the Development manager determines is necessary to effectively market the Units, which may include:

CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD (Meagher JA) 5

Re-painting and carpeting common areas where necessary;

5.11.7 preparation of sales marketing and campaign to sell the Units; 5.11.8 putting in place a proper promotional marketing campaign including instructing selling agents;

5.11.9 liaison with the Owner's solicitors on all sales and follow up where necessary to ensure exchange and completion of Contracts without reasonable delay.

5.6 The Development Manager warrants that it will employ or retain the services of a licensed builder ("the Builder") to carry out the renovations to the Property pursuant to this Deed and that at all relevant times such builder shall be under the immediate direction and control of the Development Manager;

5.10 The Development Manager expressly warrants to the Owner that all work to be performed as part of the work will be performed in a proper and workmanlike manner. The Development Manager expressly warrants to the Owner that all material, plant, equipment, PC. Items supplied for installation will be of good quality, good working order and fit for their intended purposes.

5.11 All work undertaken shall be in accordance with plans and specifications approved by the relevant authority.

5.12 All work to be done to the Property requiring consent, approval or authority from any authority, state government department, local or municipal council will be undertaken by the Development Manager or on his behalf only once such consent approval authority has been obtained in writing."

The provisions of cl5.6, in particular, should be noted. A Deed of Variation was later executed, but its priorities are of no importance. The relevant provisions of the Home Building Act 1989, are as follows:

"residential building work" means any work involved in, or involved in coordinating or supervising any work involved in:

(b) the making of alterations or additions to a dwelling; or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

¢ It includes specialist work done in connection with as dwelling and work concerned in installing a prescribed fixture or apparatus in dwelling (or in adding to, altering or repairing any such installation).

¢ It does, not include work that is declared by the regulations to be excluded from this definition.

4 Unlicensed contracting A person must not contract to do:

(a) any residential building work, or (b) any specialist work,

except as, or on behalf of an individual, partnership or corporation that is the holder of a licence authorising its holder to contract to do that work.

(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.

(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.

94 Effects on contract of contravention (1) A person who enters into a contract in contravention of s92(1) or s93(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 at breach of the contract committed by the person.

99 Requirements for insurance for residential building work

Acontract of insurance in relation to residential building work required by s92 must insure:

(a) a person on whose behalf the work is being done against the risk of loss resulting from non-completion of the work because of the insolvency or death of the contractor or because of the fact that, after due search and inquiry, the contractor cannot be found, and

(b) a person on whose behalf the work is being done and the person's successors in title against a breach of statutory warranty in respect of the work."

The object of the Act, presumably, is the protection of the owners of a property, who might otherwise be subjected to the consequences of a_builder's impecuniosity. Hence, the Act insists, all builders must be licensed. The provisions of cl5.6 of the agreement further that policy.

This case really resolved itself into one question: bearing in mind that s92 of the Act forbids an uninsured person from contracting to do any residential building work, is the contract between Casa Maria and Trend Properties to be described as a "contract to do any residential building work"? In my opinion, it clearly is not. It does not require any building work to be done. Trend Properties would not be in breach of contract if it failed to do any building work. The agreement clearly states that if any building work is to be done a licensed builder will do it. That one or more provisions might possibly involve a slight measure of "building work" does not convert the contract as a whole to be "a contract to do any building work". If this were not so, probably every joint venture agreement and every partnership deed should be "a contract to do any building

URJ CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD (Fitzgerald AJA) 7

work". And so would most, if not all, leases, where a conventional covenant by the lessee to keep the premises in good repair.

In the present case, as things turned out, Trend Properties' obligations to obtain necessary council approval (and have the flats converted to Strata Title) did involve a small measure of "building work", but that did not convert the contract into a contract "to do... residential building work".

Thus, the appellant's agreement is an attempt to put a strained meaning on the words of an Act of Parliament, when the plain words will not suffice, when the purpose of the Act does not require such a meaning, and where its application would be productive of great injustice.

Fitzgerald AJA By subs92(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 subs94(1)(a) of the Act, a person who enters into a contract in contravention of subs92(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)...". Taken literally, subs94(1) has an absurdly wide application having regard to the definitions of "dwelling" and "residential building work" in subs3(1) of the Act.

The injustice of which the Act is capable is illustrated by the present case, in which 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 primary judge declared that five unsold units are held on trust by the appellant for the respondent and ordered the appellant to all things reasonably necessary to transfer the units to the respondent. Further, he referred the respondent's loss and damage to the Master for determination, and ordered that judgment be entered in respect of the amount determined. A cross-claim by the appellants was dismissed, and the appellant was ordered to pay the respondent's costs of the proceedings.

By its appeal, the appellant asks that the orders made by the primary judge be set aside and that it be declared that, by virtue of subs94(1) of the Act, the respondent is not entitled to any damages, or to enforce any remedy or entitled to any right of action. An order is sought requiring the respondent to withdraw a caveat which it has lodged in respect of the five unsold units.

The parties' original contract was contained in a Deed dated 6 June 1987 (the "June Deed") and related to a property comprising seven home units at 26 Orwell, Street, Potts Point. The appellant owned all seven home units, most of which were subject to leases. Broadly stated, the June Deed required the appellant to make the property available to the joint venture, and obliged the respondent to do everything else necessary up to and including the sale of the units. Provision was made for the respondent to pay a deposit of $50,000 to the appellant and for the appellant to receive the first $140,000 from the sale of each

of four one bedroom units in the building, and $180,000 from the sale of each of three two bedrooms units, with the balance of the sale prices going to the respondent.

The respondent was required to obtain vacant possession of the property and all necessary approvals from South Sydney Council, to prepare and obtain a plan of strata subdivision and obtain its registration by the Land Titles Office, and, by cl5.1.6, to "carry out such renovation works as [the respondent] determines is necessary to effectively market... " and sell the units.

Cl5.1.6 was elaborated upon by cl5.6, cl5.10, cl5.11 and, cl5.12. which respectively provided:

"5.6 the Development Manager warrants that it will employ or retain the services of a licensed builder ("the Builder") to carry out the renovations to the Property pursuant to this Deed and that at all relevant times such builder shall be under the immediate direction and control of the Development Manager.

5.10 the Development Manager warrants to the Owner that all work to be performed as part of the work will be performed in a property and workmanlike manner. The Development Manager expressly warrants to the Owner that all material, plant, equipment, PC items supplied for installation will be of good quality, good working order and fi for their intended purposes.

5.11 All work undertaken shall be in accordance with plans and specifications approved by the relevant authority.

5.12 All work to be done to the Property requiring consent, approval or authority from any authority, state government department, local or municipal council, will be undertaken by the Development Manager or on his behalf only once such consent approval authority has been obtained in writing."

The respondent did not dispute that the work required by cl5.1.6, cl5.10, cl5.11 cl5.11 and cl5.12 related to a "dwelling" as defined in the Act. Further. it accepts that it did not have a contract of insurance. The definition of "residential building work in subs3(1) of the Act is as follows:

"residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in:

(b) the making or alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

¢ It includes specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or adding to, or altering or repairing any such installation).

• It does not include work that is declared by the regulations to be excluded from this definition."

Some work which would otherwise fall within the definition of "residential building work is excluded from the statutory definition by reg7 of the Home Building Regulation 1990. Subreg7(1)(f)(iii) excludes "the supervision only of building work... by any... person, if all the residential building work is being done or supervised by the holder of a licence authorising its holder to contract to do that work".

URJ CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD (Fitzgerald AJA) 9

The trial judge found that the June Deed was not a contract to do residential building work. His Honour said that he did not consider an agreement under which "... the extent of the work was not known; there were no plans for it; there was no price to be paid for it; and there was no obligation on the party doing the work to do particular work; the obligation to pay for the work which was done was on the party obliged to have the work done; and the actual builder was intended to be the licence holder... " was a contract to which s92 applied. The judgment continued:

"The fact that the party responsible for having the work carried out is to obtain a particular return from a joint venture in no way indicates that that return is a payment for residential building work when there are many other responsibilities of [the respondent] under the contract."

Further, after noting there appeared to be circularity between the definition of "residential building work" in subs3(1) of the Act and reg7(11)(f)(iii) in that each referred to "supervision" and "residential building work", his Honour expressed the opinion that the June Deed was not a contract by the respondent to do any residential building work because he considered it perfectly clear that [the respondent] was not to do the work itself, but to have it done by a licensed builder

• [June Deed] cl5.6 - under its supervision". His Honour had earlier stated that he accepted the "that cl5.6 of the [June Deed] requires supervision by [the respondent], but I do not accept it requires co-ordination".

In addition to challenging the views expressed by the trial judge, the appellant submitted that reg7(1)(f)(iii) has no material operation because it only applies "if all the residential work is being done or supervised by the holder of a licence (Emphasis added). In my opinion, the appellant's reliance upon the inelegant use of the present tense in the phrase "is being done or supervised" was misplaced. Reg7(1)(f)Gii) is concerned to require that the person responsible for doing or supervising the material work has a licence, not with whether work or the supervision of work has already commenced when a contract is entered into.

Nonetheless, in my opinion, the trial judge's judgment cannot be sustained on the basis of the reasons given. Subs92(1) applies to a contract "to do any residential building work" including, because of the definition of "residential building work in subs3(1) of the Act, the co-ordination of renovations to a dwelling. The respondent's undertakings that the licensed builder carrying out the renovations would at all relevant times "... be under the immediate direction and control" of the respondent, who would ensure that all work was "performed in a proper and workmanlike manner" only after any necessary consent, approval or authority had been obtained and in accordance with plans and specifications approved by the relevant authority cannot, in my opinion, be placed outside the definition of residential building work.

However, I am also of opinion that the obligations which the respondent seeks to enforce against the appellant were not contained in the June Deed.

Reference has already been made to the $50,000 deposit paid by the respondent to the appellant, and to the appellant's entitlements from the sales of units. The effect of cl9.2.4 and cl9.2.5 of the June Deed was to require sales of all units to be completed by 15 December 1997. If any units were then unsold,, the respondent was required to enter into and complete contracts for the purchase of those unsold units by 31 December 1997. at a price of $140,000 for each one bedroom unit and $180,000 for each two bedroom unit.

There were negotiations between the parties in November and December 1997 for an extension of time and variations to the June Deed. By 24 December 1997, the strata subdivision plan had not been registered by the Land Titles Office. However, there is no suggestion that there was then any residential building work remaining to be done under the June Deed. Further, the respondent was in a position to complete purchases of each of the units by 31 December 1997, as required by the June Deed.

A further deed (the "December Deed") was executed on 24 December 1997. The December Deed extended the date of finalisation from 31 December 1997 to 28 February 1998, and increased the appellant monetary entitlements. The appellant was to receive the first $145,000 from the sale of each one bedroom unit and the sum of $181,667 from the sale of each two bedroom unit a total increase of $25,000. With the deposit of $50,000 which it had earlier been paid, the appellant was to receive a total of $1,125.000. And it was entitled to terminate the transaction if it had not received that total sum by 28 February 1998.

The December Deed also provided for two new clauses, which, respectively, provided:

"13.1 The [respondent] may, at any time on or before 28 February 1998, pay, to the [appellant] the [appellant's] entitlement to the proceeds from the sale of the Units, notwithstanding that Contracts for the sale of any or all of the Units have not been entered into or completed.'

13.2 Provided that the [respondent] pays or causes to be paid to the [appellant], the sum of $1,125,000... on or before 28 February, 1998 then the [appellant] shall continue to have the carriage of the conduct of the conveyance of the Units."

The effect of those provisions was to leave the title to the units in the name of the appellant which was required to transfer them at the respondent's direction to purchasers, from whom the respondent was entitled to receive the prices at which the units were sold.

The strata plan was registered on 4 February 1998, and contracts for two of the units were entered into about that time. However, no sales have been completed by 27 February 1998. On that date, the respondent paid $1,075.000 to the appellant. With the earlier payment of the deposit of $50,000, the appellant had been paid the full amount to which it was entitled.

Some time later, the sales of the two units in respect of which contracts had been entered in February 1998 were completed, and the respondent received a total of $535,748 from those sales. However, the appellant, which remains registered as the owner of the other five units, refuses any further performance of the transaction. The appellant has informed the respondent that it will not exchange any further contracts for sale of the units, and that it intends to retain ownership. The sole basis for this unconscionable attitude is subs94(1) of the Act.

By the December Deed, the appellant affirmed its obligations to the respondent in return for varied promises by the respondent and performance was postponed to a later date. In my opinion, the obligations of which the appellant is in breach arose from the December Deed, and the date of the December Deed is the date at which it must be determined whether the respondent contracted "to do any residential building work" without a contract of insurance contrary to subs92(1) of the Act. The respondent had no obligation to do any residential building work after that date. I consider that in these circumstances, the respondent's claim is not excluded by subs94(1) of the Act and that the appeal must fail.

Accordingly, I agree with Meagher JA that the appeal should be dismissed with costs.

URJ CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD (Fitzgerald AJA) 11

Counsel for the appellant: D Officer QC/D L Warren Counsel for the respondent: B A Coles QC/C R Newlinds Solicitors for the appellant: Garvis

Solicitors for the respondent: Fishburn Watson O'Brien