Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Respondent acquitted of charge that as an unregistered builder it entered into an engagement to construct a building - Meaning of 'construct any building' - Meaning of 'building of a permanent nature' - Requirement that total fee or charge exceeds $20,000

Builders' Registration Act 1939 (WA), s 4(1)(A), s 4(1)(A)(1b)

Appellant : Mr M Mannes, Builders' Registration Board

Great City Pty Ltd v Kemayan Management Services (Aust) Pty Ltd [1999] WASC 70; (1999) 21 WAR 44

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Walsh v Tattersall (1996) 188 CLR 77

1 The respondent was charged in the Magistrates Court with an offence committed on 15 October 2007 in Karratha, contrary to s 4(1)(A)(b) of the Builders' Registration Act 1939 (WA). The offence was that:

not being a registered builder, [it] entered into an engagement to construct a building for another ... the total value of which exceeded $20,000.

2 Particulars of the charge were not sought or ordered by the court under the Criminal Procedure Act 2004 (WA) (CPA), s 131. The offence so charged is a simple offence. It is not a prescribed offence under CPA, s 35(5). However, although particulars of the charge were not sought or ordered, a statement of the alleged material facts was provided and appears to have been regarded by the parties as particulars.

1. The accused was not a registered builder at all material times.
2. On 15 October 2007, the accused entered into an engagement with Kintail Investments Pty Ltd for the siting, stumping and connection of 67 transportable accommodation units in consideration of the fixed sum of $2,699,777.
3. The above constitutes an engagement to construct a building, contrary to s 4(1)(A)(b) of the Builders' Registration Act 1939.

4 The charge was defended and was heard in the Magistrates Court before her Honour Magistrate Hogan on 15 October 2009. On 9 December 2009, her Honour published her reasons for the decision she made to acquit the respondent. I may need to refer to particular aspects of her Honour's reasons, but at this juncture it is sufficient to set out the summary of her Honour's reasons in the concluding part of her judgment:

1. The accused has been charged as a person not registered under the Act with entering into an engagement to construct a building. It is alleged that the accused entered into an engagement to add to and alter numerous pre-fabricated buildings by: preparing a site for installation of the buildings; installing the buildings onto the prepared site which included footings; by connecting the buildings to various utilities; and by providing and connecting verandas to the building. The court is satisfied that the provision of footings is caught by the definition of 'construct'. However the court is not satisfied beyond reasonable doubt that the engagement can be categorised as one to construct a building given that the construction of the footings themselves constituted only a component part of the engagement.
2. The evidence relating to the connection of services and verandas was insufficient to establish beyond reasonable doubt that the engagement included the provision of same such that that provision would fall within the definition of 'construct'.
3. The prosecution has failed to discharge the burden of proof, beyond reasonable doubt in relation to whether the buildings in question are buildings of a permanent nature

1. The learned Magistrate erred in law in holding that the engagement entered into between the Accused and Kintail Investments Pty Ltd for the stumping, placing and connecting of the prefabricated dwellings to land was not an engagement to construct a building in that Her Honour:

1.1 erroneously accepted and applied the decision of CMG Services v Ack Pty Ltd (Unreported), District Court of WA No. BC200440246;

1.2 erroneously concluded that an engagement to construct a building as contemplated by section 4(1)(A)(b) of the Builders' Registration Act 1939 does not encompass a contract or engagement to construct a part of any building; and

1.3 erroneously concluded that the nature of an engagement to construct a building as contemplated by section 4(l)(A)(b) of the Builders' Registration Act 1939 cannot be `multi-faceted', in that the work entailed in constructing a building must form more than just a facet of the engagement.

1. The learned Magistrate erred in fact and law in determining that:

2.1 the Prosecution failed to produce sufficient evidence to prove beyond reasonable doubt that the transportable dwellings were of a permanent nature; and

2.2. the prefabricated dwellings were not of a permanent nature.

1. The learned Magistrate erred in law in holding that the engagement in question did not contravene section 4(1)(A)(b) of the Builders' Registration Act 1939.

6 Ground 3 is not, I think, a ground of appeal at all. It merely alleges an error in law in not convicting the respondent. The ground breaches r 65(2)(a) of the Criminal Procedure Rules 2005 (WA). I will pay this ground no further attention.

7 The respondent, unnecessarily, but helpfully, filed a notice of contention seeking to uphold the decision of the magistrate on the following grounds:

1. The Appellant's complaint was either bad for duplicity or alleged an offence not known under the Builders' Registration Act 1939 (Act), in that:

(a) The case pleaded in the Prosecution Notice was that the Respondent constructed 'a building' not a number of buildings;

(b) The case actually advanced against the Respondent was that it 'constructed' a number of buildings, namely 67 transportable accommodation units, by siting, stumping and connecting each of them; and

(c) There was no evidence of the value of building work in respect of any such single building.

1. The structures were not a 'building', as defined in section 2 of the Act, because they were not by their nature permanent, in that:

(a) if they were transportable, they could not, or were not, by their nature, permanent; and

(b) if they were 'connected' to the subject site subject to a contractual obligation to remove them after 10 years, they could not be, or were not, permanent.

8 At trial, two witnesses were called. The prosecution case was presented through a Mr McKenzie, a director of Kintail Investments Pty Ltd (Kintail), who had a contract to develop a site at Karratha, upon which was to be located the 67 transportable accommodation units to which the statement of material facts refers. Kintail entered into a contract with a company called Blue Ridge Pty Ltd (Blue Ridge) to manufacture the transportable accommodation units.

9 The units had to be cyclone tolerant because Karratha is in an area prone to cyclones, and they had to be affixed to the land. The respondent (Keller) entered into a fixed lump sum contract with Kintail to prepare the site and install the units once they were transported to the site from the factory by Kintail. The respondent's case was presented at trial through the evidence of Mr Keller, a director of the respondent.

10 The lump sum contract was for the sum of $2,699,777, to which reference is made in the statement of material facts. The contract was signed on the date alleged in the prosecution notice, 15 October 2007. The contract sum was derived from a quotation dated 20 September 2007 which was accepted. The quotation described the whole of the work to be carried out by Keller, surveying the site to follow the plan for the location of the units, associated roadworks and the like. A lot of general earthworks were required. The roads to be established on the site were to be properly sealed and kerbed. Concrete pathways were to be provided. Verandahs were to be attached to the units once they were in place.

11 So far as the units themselves were concerned, they were to be placed on footings and held down by welded ties to make them stable during cyclone conditions. Then the units were to be linked up to an electricity distribution system, a sewerage system, a water distribution system and a communication system, all of which were to be provided by Keller. There was a separate provision for the reticulation of gardens, drainage works, the installation of culverts and fencing designed to stay in place in cyclonic conditions.

12 Each broadly described item of work was separately costed in the quotation. The work of preparing the footings and tying down the units was costed at $198,200. The cost per unit would therefore be, on average, a fraction under $3,000. But as I say, it was a lump sum contract into which the parties entered.

13 As to the work itself, there was no dispute between Mr McKenzie and Mr Keller. The units were located on prepared sites. The footings referred to in the quotation were concrete pilings, sunk 1.5 metres into the ground and topped with steel plates. These plates were then welded to the underside of the units to a steel framework to which the floor and the rest of the unit was affixed. Once the unit was secured to the ground in that way, the service connections would be made - electricity, sewerage, water and the communication system. A verandah would then be provided, together with concrete paths. Her Honour was not able to find that the verandah was a roofed structure, rather than a simple area surfaced with concrete and linked to the accommodation unit.

14 Of course, as her Honour appreciated, any accommodation unit fixed to the ground in the way described might ultimately be removed by the simple expedient of breaking the welds by which the unit was attached to the footings. The land was the subject of a 10 year lease, but there appears not to have been evidence to suggest that the units were to be removed upon the expiry of the lease. Mr McKenzie's evidence was apparently that the units were to remain on the relevant site 'indefinitely, as with any other village that had been constructed up in Karratha ... for the life of the buildings at least'.

15 Her Honour found that the question whether the buildings were of a permanent nature depended upon the nature of the building itself, rather than the permanency of its location in a particular place. She found that although the evidence established that these were accommodation units sufficiently durable to last indefinitely, she was not able to find that they were of a permanent nature.

16 The material parts of s 4 of the Builders' Registration Act are as follows:

1. Prohibition against unregistered builders carrying on business

(1) Subject to this section, a person who is not registered under this Act shall not -

(A)(a) construct either for himself or any other person, any building for the purpose of the immediate sale thereof;

(aa) construct for himself any building other than a dwelling house or a building comprising 2 dwellings on ground level, each being complete and self-contained, whether or not the building is so designed as to give an external appearance of a single dwelling;

(b) enter into any contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement;

(c) be entitled to recover in any court any fee or charge under any such contract or engagement;

(d) hold himself out as trading as a registered builder, or, as the case may be, a journeyman builder, unless -

(i) the total fee or charge payable in respect of the carrying out of the same does not exceed $6 000 or such other amount as may be prescribed by regulations made under section 24; or

(ii) under subsection (2) he is a person exempted from the necessity of obtaining registration;

(1aa) ...

(1a) ...

(1b) In subsections (1) and (1a) -

construct includes add to, alter, improve, renovate and repair.

(2) ...

(3) The provisions of this section apply notwithstanding that a number of distinct contracts or engagements to perform work or render services are entered into in connection with the same building by the same person, where -

(i) the moneys payable in respect of the performance of the contracts or engagements exceed $6 000 or such other amount as may be prescribed by regulations made under section 24, in the aggregate but some or all of such contracts or engagements taken severally do not exceed that sum; or

(ii) in any case where the Board is satisfied that they are substantially in respect of the one undertaking or that they were entered into with a view to evading the provisions of this Act.

17 The word 'building' is defined in s 2 as follows:

building means any building of a permanent nature used or intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage, or public purposes, but does not include a farm building, and the term used as an abstract noun means the erection or structural alteration of any such building;

18 The Builders' Registration Regulations, reg 18, provides that for the purpose of s 4(1)(A)(d)(i) the total fee or charge payable in respect of the construction of a building is prescribed as $20,000. By that regulation, for the purpose of s 4(3)(i), the aggregate sum payable for the performance of the contracts or engagements in respect of the construction of a building are prescribed as the same amount, $20,000.

19 As the charge was tried in the Magistrates Court, and on appeal to this court, the questions which arise did not include the question whether the respondent was proved not to be a registered builder. That was clearly established. The matters at issue were, and are:

1. Was the charge that the respondent entered into an engagement to construct 'a building' void for duplicity, or did it allege an offence not known to the Act because the engagement entered into was to construct 67 transportable accommodation units? (The point is raised, for the first time, as ground 1 of the respondent's notice of contention.)
2. Was a transportable accommodation unit a 'building' as defined -

1. Was a transportable accommodation unit a 'building of a permanent nature'?
2. Was the contract into which Kintail and Keller entered an 'engagement to construct' a building in that it involved adding to or altering 67 transportable accommodation units?
3. Did the requirement that the total fee or charge payable in respect of the construction should be over $20,000 apply to each unit, or to the whole contract or engagement made in respect of 67 units?

20 In my opinion, these are the questions which remain live arising out of the first two grounds of appeal and the grounds of the notice of contention. I will deal with each in turn. As will be seen, there is precious little authority to guide me on the points raised, which are points of construction of the legislative provisions which I have set out above.

21 As to the process of construction, the law is clear. I am to construe the words of the statute in a way calculated to promote the purpose or object underlying the statutory provision: Interpretation Act 1984 (WA), s 18. I am, in that way, to give the words of the enactment the meaning which the legislature intended them to bear. That will ordinarily be achieved by giving the words of the statute their ordinary grammatical meaning. But I should not overlook the fact that the meaning of the words is to be found within their statutory context, and if that context, the discernible purpose of the enactment or the canons of construction dictate the adoption of a meaning which would not ordinarily be applied to the words used, then it is that meaning to which the court must give effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (McHugh, Gummow, Kirby & Hayne JJ) 384 [78].

22 Section 19 of the Interpretation Act permits the use of extrinsic materials in the interpretation of an enactment. I was referred to some extracts from Hansard in relation to one aspect of the argument before me. I have perused the materials supplied with care. I regret to say that I did not find them to be of assistance in arriving at the proper construction of the relevant portion of the statute.

23 As I have mentioned, the contention expressed in ground 1 of the respondent's notice was not a point raised at trial. Ordinarily that would be an end to the matter, but in a case where, upon the indictment or the prosecution notice as framed, if any conviction were to result it could not be said of what offence known to the law the accused had been convicted, then the conviction would be set aside on appeal.

24 That was the result in the case of Walsh v Tattersall (1996) 188 CLR 77, the case relied upon by the respondent. The appellant in that case had been charged under the Workers Rehabilitation and Compensation Act of SA with obtaining by dishonest means, 'payments or benefits made under the Act'. The charge related to payments made to the employee over the period of a year. The offence was committed by a person who 'obtains by dishonest means any payment or other benefit' under the Act. Therefore, each payment or benefit obtained dishonestly constituted an offence. The majority of the High Court, Gaudron, Gummow and Kirby JJ, Dawson and Toohey JJ dissenting, quashed the conviction because the charge was duplicitous if there was one conviction for a number of payments, or if it could not be said which payment within the period covered by the charge was the subject of the conviction.

25 However, that would not be the position if the appeal was to succeed and the respondent was to be convicted of the offence charged in this prosecution notice. The charge was that the respondent 'entered into an engagement to construct a building'. He was not charged with constructing a building. There was only one engagement and it was that entered into on 15 October 2007. Provided that was an engagement to construct a building, then, if the other questions arising were answered favourably to the prosecution, the respondent might be convicted of one offence in relation to one engagement. The fact that the engagement was actually for the construction of 67 buildings would not invalidate the conviction.

Was the engagement in respect of a 'building'?

26 In my opinion, the contract or engagement entered into on 15 October 2007 was in respect of a 'building'. Indeed, as I have said, it was in respect of 67 transportable accommodation units. The Act, in s 4, and having regard to the definition in s 2, uses the word 'building' in two different ways.

27 The first sense in which the word is used is the structure, something which is constructed or built, which may be used or is intended to be used for residential, professional, manufacturing, trading, commercial, hospital, institutional, assemblage or public purposes. By s 4(1b), when the word 'building' is used in this sense, the term 'construct' is given an extended meaning to provide that various activities will qualify as constructing a building.

28 But the word 'building' as defined in s 2 may also be used as an abstract noun to refer to the process of the erection or structural alteration of a building used as a concrete noun. Therefore, in this sense the word 'building' encompasses the erection or structural alteration of the thing which would be a building in the concrete sense.

29 In my opinion, in s 4(1)(A)(b), the word 'building' is used in both senses. It refers both to a transportable accommodation unit which, in my opinion, is a building within the meaning of the Act, because it is a structure used or intended to be used for residential purposes, and the word 'building' refers to the thing which, at any stage, has applied to it a process of erection or structural alteration. That may change the character of the building, but it remains a building within the meaning of the Act, nonetheless.

30 In passing, I note that in s 4(1)(A)(b) the word 'build' is used. It is an offence for a person who is not a registered builder to build a building for another pursuant to any contract or engagement, subject to the question of value if that applies. In this sense, the word 'build' used as a verb would bear its ordinary meaning of the erection or construction of the thing built, without reference to the extended meaning given to the word 'construct' by s 4(1)(b).

31 In the final analysis, therefore, each accommodation unit was, in itself, a building in the sense that it was used or intended to be used for residential purposes and, at the same time, the process of erection or structural alteration of that building would make it a different building, although not necessarily of a different character.

32 It will be recalled that this was a concern expressed by the magistrate, and that her Honour declined, on the evidence, to make the finding that a transportable accommodation unit was established to be a building of a permanent nature or would be properly so described once the process of fixing it to its site was completed. The respondent argues that the building was not of a permanent nature and that her Honour was right not to make the finding that it was, because each of the units was to be located on a rented site and might need to be removed when the lease expired.

33 As to that I should say that, having perused the evidence carefully, I can find no evidence that there was a firm contractual or other commitment to remove the buildings at any such time. Indeed, the tenor of the evidence seems to be that the best that could be said about the continued existence of these units on their sites was that they were to be there indefinitely.

34 However, with respect, I do think that debate rather misses the point because, as counsel for the appellant points out, for a building in the sense of a construction or erection to fall within the definition of the word 'building', for the purposes of the Act, it has to be a building 'of a permanent nature', and the focus therefore is upon the nature of the building.

35 So, for example, a tent erected for residential purposes could not, I think, properly be regarded as a building of a permanent nature, no matter how long it was intended that people should live in it. The same might be said of a canvas field hospital, a marquee which is a standing adjunct to a restaurant used for special functions, or a structure used for a limited and temporary public purpose.

36 But I think that the nature of the building might be limited by the purpose for which it was erected, and so a building which might otherwise properly be described as permanent might be held not to be established to be so if it was erected for a limited or temporary purpose after which it was intended to be dismantled or removed, no matter how robust the structure or erection might be, and no matter that, if left alone, it might remain as a building indefinitely.

37 In the final analysis, then, it seems to me that in the context of this Act and its purpose to provide for a detailed oversight of the qualifications and skills of builders, by the registration process, and to deal with building disputes between principal and contractor, a building would be held to be of a permanent nature if it was so made that it might last indefinitely, provided that its construction or erection was not for a limited or temporary purpose. In this case the units were, on the evidence, residential units which, subject to ordinary maintenance and wear and tear, might last and serve that purpose indefinitely, even though they could be moved from place to place.

38 Further, when located on site by the process of fixation to the footings to which the evidence referred, the units were buildings of a permanent nature because they might have been left there indefinitely, and there was no evidence of a definite limit to their use as buildings which might properly lead to the conclusion that these were buildings not established, beyond reasonable doubt, to be of a permanent nature by reason of the limited temporary purpose for which they were located on site. In this respect, in my opinion, her Honour fell into error.

39 The act by which the offence charged in this case is committed by a person who is not registered as a builder, is the act of entering into a contract or engagement to construct a building. The other way to commit an offence defined by s 4(1)(A)(b) was for an unregistered person to 'build any building for another in pursuance of any contract or engagement'. There can be, and was at trial, no suggestion that Keller entered into an engagement to construct or build the individual accommodation units, or any of them.

40 The units were made off-site in a factory by Blue Ridge and were transported to the site by Kintail. Nor could there be, nor was there at trial, any suggestion that what was to be done by Keller to the units on site would amount to the construction or building of the accommodation units, or any of them, to bring them to their final state of readiness for use as residential accommodation.

41 The question is whether the evidence of what Keller was to do to the units to locate them on site would amount to work of construction of each building (the work being established by the evidence to be the same with respect to each building) within the extended meaning given to the word 'construct' by s 4(1b) of the Act. For the appellant it was put that that work constituted construction by adding to or altering each unit. In my opinion, the word 'alter', in this context, having regard to the fact that it is an activity done to a building as defined by s 2, must refer to the 'structural alteration of any such building'.

42 The question may then be posed, whether the engagement entered into by the respondent was one to construct each unit, in the sense that work was to be done to each unit by way of addition to it, or structural alteration of it. Her Honour the magistrate so found and, with respect, I entirely agree.

43 In my opinion, the work of constructing the concrete footings, embedding the steel plates on them and welding the accommodation units to those footings so as to affix the unit indefinitely to the land (unless the nature of the building was altered by breaking the weld) was work which involved adding to each unit and making structural alterations to it so that the character of each unit was changed from being a transportable accommodation unit to one which was affixed permanently to the land. The engagement was for the construction of each unit within the meaning of the Act and the extended definition of the word 'construct'.

44 I should make it clear, however, that I would not think that any construction work was involved in the process of doing site works, installing reticulation and paths, the laying of a concrete 'verandah' to each unit, and the work of connecting each unit to the services of electricity, water, sewerage and the communication system. To the extent that the contract or engagement into which Keller entered involved work of those descriptions, as was overwhelmingly the case, it was not an engagement to construct a building. However, that did not prevent the contract or engagement falling within the ambit of the Act, to the extent that it was to involve the work of construction of each building.

45 The proper view of the nature of the contract or engagement in this case, in my opinion, was that it was a contract or engagement for the construction of each of the buildings, in the extended sense used by the Act, and it was also a contract or engagement to do a lot of other work on site, work which did not amount to the work of constructing a building, and was therefore simply irrelevant for the purpose of deciding whether the contract or engagement fell within s 4(1)(A). Again, it seems to me, with respect, that to the extent that her Honour concluded that this was not a contract or engagement for the construction of a building because, overwhelmingly, the work was not of that character, her Honour fell into error.

46 In support of her interpretation of the provisions of s 4 in this regard, her Honour considered the decision of Groves DCJ in a civil case, CMG Services v ACK Pty Ltd [2004] WADC 257. This was an action arising out of a contract for the supply and erection of roof trusses. It was a claim for breach of contract by a builder which was unregistered. The roof trusses were to be fitted to the other party's building. The claim was allowed and damages were awarded. In part, the defence was that because the claimant was unregistered the work was performed in contravention of s 4(1)(A)(b), as a result of which, under s 4(1)(A)(c), the unregistered builder was not 'entitled to recover in any court any fee or charge under any such contract or engagement' which was illegally entered into.

47 At [115] - [116] of his judgment, Groves DCJ described this part of the defence as 'misconceived'. His Honour said that the agreement upon which the action was brought was not an agreement to construct or build the other party's building, but was merely to do part of the work by supplying and fitting the roof trusses. His Honour said that the contract was not caught by s 4(1)(A)(b). The judgment makes no reference to s 4(1b).

48 In any event, Groves DCJ said, if the agreement was caught by the Act, the claim was not for a 'fee or charge' within the meaning of s 4(1)(A)(c), but was an action on a quantum meruit, relying upon the decision of the High Court in Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221, as applied by White J in Great City Pty Ltd v Kemayan Management Services (Aust) Pty Ltd [1999] WASC 70; (1999) 21 WAR 44. In that respect, in my respectful opinion, the decision of Groves DCJ is undoubtedly correct, but again, with respect, it seems to me that his Honour's reasoning in relation to the contract or engagement which will be caught by and held to be in contravention of s 4 of the Act is incomplete.

49 The question here, as I have observed, is whether the entry into the contract or engagement is saved from being a contravention of s 4(1)(A)(b) because the total fee or charge payable in respect of carrying out the work of construction did not exceed $20,000 in respect of any unit, contrary to the allegation in the charge contained in the prosecution notice. It will be recalled that the statement of material facts relied upon the total consideration payable in respect of the contract or engagement made by Keller with Kintail.

50 The prosecution contention is that the requirement that the 'total fee or charge payable' must exceed $20,000 related to the contract or engagement entered into for the construction of a building, rather than the value of the construction of any one of the 67 buildings the subject of the contract or engagement, a total sum of $198,200, if not the total contract sum of $2,699,777.

51 In Builders' Registration Board of WA v Roroka Pty Ltd (Unreported, WASC, Library No 8776, 25 March 1991) Owen J construed the exception to the operation of s 4(1)(A) which is expressed in subpars (i) and (ii) as being applicable to all of the preceding subparagraphs (a) - (d), rather than, as the way in which the Act is printed would suggest, being applicable solely to s 4(1)(A)(d). In my respectful opinion, that is undoubtedly correct. It makes no sense to confine the application of those subparagraphs solely to s 4(1)(A)(d).

52 The purpose of subpars (i) and (ii) is to confine the application of the Act to cases where the total fee or charge payable is of some substance, to avoid catching small projects and, of course, to confine the operation of s 4(1)(A) to cases where the unregistered builder is not exempt from the necessity of obtaining registration. That interpretation is aided by s 4(3) which deals with the case where there are a number of distinct contracts or engagements to perform work or render services in connection with the same building by the same person.

53 On the basis of that interpretation of s 4, and calling in aid the provisions of reg 18, the material parts of s 4(1)(A), so far as this prosecution was concerned, may be restated as follows:

[A] person who is not registered under this Act shall not enter into any contract or engagement to construct any building, or build any building for another in pursuance of any contract or engagement, unless the total fee or charge payable in respect of the carrying out of the same does not exceed $20,000.

54 When that is done, it seems to me that it becomes clear that the $20,000 threshold for the application of the provisions of s 4(1)(A)(b) applies to the value of the contract or engagement entered into for building or construction work, in a case where the offence charged is the entry into that contract or engagement, rather than the building of a building pursuant to such a contract or engagement. I have taken the view that this was a contract or engagement to construct a building within the meaning of the Act in that it was a contract or engagement to construct 67 buildings.

55 But the offence charged was not the building of the buildings, but the entry into the contract or engagement, and the value of carrying out the work of construction, within the meaning of the Act, for which the contract or engagement provided was the sum of $198,200, a sum well in excess of the threshold amount of $20,000, although that amount would not be attained in respect of any individual accommodation unit in relation to which construction work was to be undertaken.

56 It follows from the above, that upon the evidence adduced before the magistrate the elements of the offence charged were all established beyond reasonable doubt. In my respectful opinion, her Honour should have convicted the respondent. I will therefore allow the appeal, set aside the decision of her Honour the magistrate and enter judgment of conviction.

57 It seems to me that, pursuant to s 14(1)(d) of the Criminal Appeals Act 2004 (WA), having taken that step, it would be appropriate that, rather than send the matter back to the magistrate for the imposition of sentence, I should pass sentence within the framework of s 4(1aa). I doubt that a daily penalty would be appropriate, and the maximum penalty would therefore be a fine of $10,000. I will hear counsel in relation to penalty.