The plaintiff was a sub-contractor and contends that the requirements of (1)(a) thereof were satisfied in this case.
28 The plaintiff relied on dicta to be found in a judgment of Hunter J in Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 (paragraphs 31 and 50). The first defendant contended that such dicta needs to be read in context with other dicta therein (paragraph 44).
29 Paragraphs 31 and 44 are as follows:-
31 In the written submissions on behalf of Multiplex reliance was placed upon the heading to the section as evidencing a legislative intention to restrict the ambit of s98 to employees "and others of that ilk, such as consultants", relying upon the operation of s35(4)(b) of the Interpretation Act 1987. However, during the course of oral submissions that proposition was abandoned, that is, to the extent that it relied upon the terminology of the heading to the section. However, in my view, whether one has regard to the heading or not, the section should not be construed to have the limited operation advanced on behalf of Multiplex. It is wide enough to embrace a sub-contractor for works in respect of which the head contractor is required to obtain insurance pursuant to Pt 6 of the Act. However, I do not think that it follows that s92 has no application to sub-contractors generally.
… … …
44 It is my view that it is not necessary to construe Pt 6 of the Act as having no application to a sub-contractor. Clearly Pt 6 of the Act is designed to ensure that in the performance of residential building work there is in place a contract of insurance complying with the provisions of the Act and while the primary responsibility for effecting that insurance will, in nearly all such cases, fall upon the shoulders of the head contractor, nevertheless, it remains the obligation of a sub-contractor not to contract to do any residential building work under a head contract, without being satisfied that a contract of insurance is in place.
30 The first defendant maintained its stance that it was a developer and was not required to obtain insurance in respect of the work performed by the plaintiff.
31 In support of that stance, the first defendant relied on various sections of the HBA (including ss3A, 96 and 99) and, inter alia, an explanatory note and second reading speeches relevant to 1999 and 2000 amendments. The object of certain of the amendments was to, inter alia, remove the requirement placed on developers to arrange insurance cover and to overcome a decision of this court (HIH v Jones [2000] NSWSC 359).
32 The term "builder" has no relevance in the context of present considerations. It is not a part of the structure of Pt 6. The fact that the first defendant acted as a builder in relation to the contract does not assist the plaintiff in this case.
33 In the circumstances of this case, it seems to me that the first defendant fell within the category of a developer (by reason of what has been described as the deeming provisions of s3A of the HBA) and as such was not required by Pt 6 to obtain insurance for the work carried out by the plaintiff. In such circumstances, the plaintiff is unable to satisfy the requirements of s98(a) of the HBA. Accordingly, I do not consider that the section assists the plaintiff in this case.
34 Save for what appeared in the report of Mr Brincat (which appears to be comment that may be thought to have little probative value), there does not seem to be any dispute that the insurance issue was not otherwise ventilated in the proceedings prior to the making of final submissions by the first defendant. The issue was not the subject of any exchange between the Tribunal and the parties during the hearing. The final submissions were made independently. The plaintiff did not see the final submissions of the first defendant and had no opportunity to respond to them prior to the making of the Tribunal's decision.
35 These were submissions that put forward, inter alia, a primary position of the first defendant. This was a position that presented the plaintiff as being unlicensed and having a claim (falling under the HBA) which had not been made out.
36 However, any denial of procedural fairness in relation to this issue is of no consequence. It seems to be common ground that the plaintiff did not have the relevant insurance. In these circumstances, it could not have either led further evidence or made further submissions of any substance on the issue.
37 In contrast, the issue raised by s94(1A) falls into a different category. Under that provision, the contractor is entitled to recover money in respect of work on a quantum meruit basis, if the Tribunal considers it just and reasonable.
38 Whilst the Tribunal did purport to undergo the exercise of the plaintiff's entitlement to this statutory relief, the plaintiff could be expected to have been unaware that the Tribunal would be dealing with that matter. The question of entitlement to such statutory remedy was also not canvassed during the hearing. It was not the subject of any submissions made by the first defendant. In the circumstances, the plaintiff could not have been expected to either lead evidence or make submissions on the matter and did not do so.
39 It seems to me that the Tribunal fell well short of satisfying the requirements of s35 of the CTTTA (which deals with "Opportunity for parties to present case"). Apart from the duties imposed by that provision, the concept of procedural fairness dictates that a party should be given a reasonable opportunity to adduce evidence and make submissions.
40 I consider that the matter has to be remitted back to the Tribunal so that the question of the statutory remedy can be revisited.
41 When addressing the consideration to be made pursuant to s94(1A) of the HBA, regard is to be had to all of the relevant circumstances of the particular case before the Tribunal. A reading of what was briefly said by the Tribunal in the making of its consideration reveals that this was not done. It also reveals that irrelevant circumstances were taken into account.
42 Relevant circumstances include the matters that work had been done by the plaintiff, that the first defendant had benefit from that work and that no payment had been made in respect of it. These circumstances appear not to have been taken into account. Curiously, it seems that such circumstances were only considered to be relevant on the question of costs.
43 What has just been said should not be misconstrued as indicating that the Tribunal has otherwise had regard to all relevant circumstances. It only had regard to four matters (including the irrelevant circumstance of failing to obtain insurance).
44 What relevant circumstances may be can be expected to depend on, inter alia, the evidence (including whether or not any further evidence is led on the question) and the submissions that are made by the parties. They will include the circumstances in which the failure to insure arose.
45 Accordingly, I am satisfied that the orders of the Tribunal should be set aside and I so order. The proceedings are remitted to the Tribunal for determination according to law of the question of the plaintiff's entitlement (if any) to the statutory relief provided by s94(1A) of the HBA. The costs of the proceedings are reserved. The exhibits may be returned.
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