The Minister also said (p 104):
"Particular types of contracts are excluded from the operation of the legislation. The main exclusions are: contracts for residential building work with the person who resides in or proposes to reside in the premises on which the work is carried out; …"
18 The defendants submitted that all that is required to come within the ambit of the provision is that the contract be for work which includes work to be carried out on the part of the premises where the party resides, or proposes to reside. It was put, in effect, that if a component of the contract is for work on such part of any premises in which the party resides, or proposes to reside, it is within the provision although another component is for work on other parts of the premises in which the party does not, or does not propose to, reside. In essence, it was submitted that it is enough for exemption that the contract include residential building work on any part of the premises where the party resides, or proposes to do so. The defendants accepted that, so understood, the provision as enacted did not reflect the legislature's intention stated in the Second Reading Speech.
19 In construing the legislation a construction promoting its purpose or object is to be preferred to a construction that would not promote that purpose or object (e.g. Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191, par 53). This is the approach required by the Interpretation Act 1987, s 33. Context is also an important consideration (CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, p 408). Ultimately, in every case, statutory construction is a text-based activity (Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, pars 87, 89).
20 The purpose of s 7(2)(b), read in context, is to define a category of construction contract to which the Act does not apply. It follows that parties to such contracts are not subject to the statutory regime whereby any person who undertakes to carry out construction work is entitled to claim and recover progress payments in relation to that work.
21 In deciding whether a construction contract is within s 7(2)(b), the only matter for consideration is whether it is one "… for the carrying out of residential building work … on such part of any premises as the party for whom the work is carried out resides in or proposes to reside in". There is no other requirement or qualification which is expressly or by implication included in the definition to be satisfied. It may be safely assumed that had the legislature intended any additional requirement or qualification it would have included it in the definition.
22 In my opinion, the natural and ordinary meaning of the words of the provision is fairly plain, and must be understood to confine the contract to one which, in substance, is for the residential building work it specifies, namely work on such part of any premises as the party for whom it is carried out resides in, or proposes to reside in. That is to say, by the use of the phrase "on such part of any premises" the scope of the work to be done is confined to work at the particular place where the party resides, or proposes to reside. I find nothing in the language of the provision to support a conclusion that a contract which is for residential building work on the premises in addition to work of the kind specified should fall within its ambit. In other words, in my opinion, it does not operate to exclude from the application of the Act a contract which is for some residential building work which fits the description, and is also for some residential building work which does not.
23 It follows, in my opinion, that the only relevant issue is whether, in substance, the contract is limited to the carrying out of the work specified by s 7(2)(b). If the contract extends to the carrying out of additional residential building work on other parts of the premises it would be a contract for something more than that envisaged, and therefore one to which the Act would apply.
24 This conclusion accords with the underlying purpose of the Act. As the plaintiff submitted, if the wide construction for which the defendants contended was correct, it would be simple indeed for a developer to enter into a construction contract which avoided the application of the Act by proposing to reside in a part of the premises on which the residential building work was carried out. Such a situation is an example of the very mischief referred to in the Second Reading Speech, which the enactment of s 7(2)(b) was intended to overcome. Because such a construction would negate the statutory purpose it should be rejected.
25 Accordingly, the plaintiff's submissions on the construction issue generally should be accepted.
26 The remaining question is whether, on the evidence, the contract in this case is one to which the Act applies.
27 It was common ground that the contract was for residential building work within the meaning of the Home Building Act 1989. It was also common ground that the building of unit xx in which the defendants propose to reside was part only of the residential building work carried out by the plaintiff under the contract.
28 With regard to my finding as to the proper construction of s 7(2)(b) the finding is inevitable that the contract is outside this provision and, accordingly, attracts the application of the Act.
29 The proceedings were conducted before me on the basis that if it was decided that the contract is one to which the Act applies the plaintiff was entitled to summary judgment. I therefore propose to make the order sought in the notice of motion.
30 However, prior to finally disposing of the matter it is appropriate for the parties to have the opportunity, failing agreement, to deal with any question of costs. Arrangements for re-listing the matter are to be made with my associate by 4pm 11 March 2008.
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