Marshall & Anor v Marshall [1997] QCA 382

Under s.42(7) a person who contravenes the section commits an offence, for which monetary penalties are prescribed.

Taken together, the provisions of ss.42(1) and 42(7) have the effect of prohibiting a person without a licence from doing either or both of two distinct acts, as well as penalising him for doing so. One is carrying out building work. The other is undertaking to carry out building work, which is an expression that is expanded in s.42(2)(c) to cover entering into a contract and submitting a tender or making an offer to carry out building work. Without more, the combined effect of legislation penalising and expressly prohibiting the making of a contract, or an ingredient of its formation such as a tender or an offer, ordinarily is, according to traditional notions, to render the ensuing contract illegal and hence unenforceable. See Re Mahmoud & Ispahani [1921] 2 K.B. 716. In addition, the effect of the prohibition in s.42(1) against carrying out building work is, again according to orthodox views of it, to render a claim for the price or value of that work unenforceable at the suit of the party responsible for the contravention. See Anderson Ltd. v. Daniel [1924] 1 K.B. 138. The present case differs from Yango Pastoral Co. Pty. Ltd. v. First Chicago Australia Ltd. [1978] HCA 42; (1978) 139 C.L.R. 410, in that there the illegality was sought to be derived from the fact that there was a statutory prohibition against carrying on a particular kind of business, accompanied by a penalty for doing so, which was said to imply a prohibition against making contracts in the course of that business. By contrast, in this instance, both the making and the carrying out of contrast are specifically selected as targets of the prohibition in s.42 and are constituted an offence, which strongly suggests that both consequences are intended; that is to say, that neither the contract or its performance are capable of conferring enforceable rights on an unlicensed builder.

I am aware that Greig & Davis, The Law of Contract, at 1117, regard the two English decisions mentioned as being wrongly decided and describe Re Mahmoud & Ispahani as an instance of "misplaced judicial zeal". It may be that on occasions courts have far too readily reached a conclusion that imposition of a statutory penalty impliedly entails contractual illegality and unenforceability even where the legislation does not expressly so provide. However that may be, s.42(3) of the Act in the present instance expressly states the consequence of contravening the statutory prohibition to be that:

"(3) A person who carries out building work in contravention of this section is not entitled to any monetary consideration for doing so."

In my opinion, the effect of s.42(3) is to prevent an unlicensed builder, in proceedings of any kind, from recovering the price or any part if it payable under a contract for building work carried out in contravention of the section. Taken by itself, that might perhaps not prevent a builder from receiving money voluntarily paid by the other party. The terms of s.42(3) are, however, very wide. A person who carries out work in contravention of s.42 is "not entitled" to any "monetary consideration" for doing so. According to the ordinary meaning of those words, a person receives a "monetary consideration" for carrying out work if he is paid for doing it. The sum of $51,000 paid by the plaintiff to the defendant satisfies that description. Counsel were unable to refer the Court to authority bearing in any relevant way on the meaning of "entitled" in a context like this. But s.42(3) expressly declares it to be money to which the recipient is "not entitled", which can only mean that it is money to which he has in law no right or title. If that is so, there is no identifiable basis on which he can, as against the person who paid it, claim to keep or retain it or its equivalent.

There are several, and I consider, persuasive reasons for adopting such an interpretation of s.42. First, there is the history of the legislation. The corresponding provision of the Builders Registration and Home Owners Protection Act 1979, which was repealed by the current Act of 1991, was s.53(2)(d). It originally provided that a person who was not a registered builder should not be "entitled to recover by action in a court a fee or charge under a contract to perform building construction for another ...". In Gino D'Alessandro Constructions Pty. Ltd. v. Powis [1987] 2 Qd.R. 54, it was held that, in that form, s.54(2)(d) did not prevent recovery, as a debt due and owing, for money for work done, or, as the High Court preferred to regard it, as restitution for unjust enrichment. See Pavey & Matthews Pty. Ltd. v. Paul [1987] HCA 5; (1987) 162 C.L.R. 221. After that decision, s.53(2)(d) was revised by amending it to provide that a person not a registered builder should not:

"(d) be entitled to claim, sue for or otherwise recover ... any fee, charge, damages or other reward of whatever nature in respect of the building construction performed or agreed to be performed."

However, in Mostia Constructions Pty. Ltd. v. Cox [1994] 2 Qd.R. 55, White J. held that, even in that form, s.53(2)(d) did not specifically preclude recovery of the amount of the builder's outlays on labour and materials the benefit of which had been accepted by the party who had requested them.

Section 42 is thus the third attempt by the legislature to make its meaning clear. On this occasion it may be credited with having intended to cast the net as widely as possible. An unlicensed builder is, as s.42(3) now provides, not entitled to any monetary consideration for carrying out building work. A principal object of the legislation, both in its original and in its current form, is to prevent unlicensed builders from doing certain kinds of building work. Substandard workmanship and materials are, plainly enough, a principal target of the statutory prohibition : see s.3(a)(i). Preventing incompetent and unlicensed builders from doing building work, and penalising them if they do so, is one method of achieving that object. On occasions, however, even competent builders make mistakes and, having done so, sometimes become insolvent or for other reasons are not worth suing for the loss sustained. One object of the legislation was, as I suggested in Gino D'Alessandro Constructions v. Powis [1987] 2 Qd.R. 40, 54-56, to establish and maintain the insurance scheme, which is now contained in Part 5 of the Act. It is funded by premiums paid by building contractors, from which claims by building owners or "consumers" can be satisfied: cf. Pavey & Matthews Pty. Ltd. v. Paul [1987] HCA 5; (1987) 162 C.L.R. 221, 229.

Under the statutory scheme, a building contractor must, before commencing residential construction work, pay to the Queensland Building Services Authority the appropriate insurance premium: s.68(1). When an insurance premium is paid in respect of residential construction work, a certificate of insurance issues: s.69(1). The insurance policy comes into force if a consumer (meaning a person for whom the building work is carried out) enters into a contract for the performance of residential construction work, in which event the contract is imprinted with a licensed contractor's licence card indorsed to show that the licensee may lawfully enter into contracts to carry out residential construction work: see s.69(2). It is true that s.69(2) applies whether or not an insurance premium has been paid or an insurance certificate has issued : s.69(3). It would nevertheless go far to diminish the funding available for the statutory insurance scheme if unlicensed builders were able to receive and retain money for doing residential construction work without complying with these provisions and with the licensing requirements of the Act. The insurance fund would be progressively depleted without receiving many of the premiums that were intended to form its source.

Another reason for concluding that an unlicensed builder is by s.42(3) not entitled to receive or retain money paid for doing building work is to be found in analogy with other legislation of a comparable kind. The Act obviously has a regulatory function of which the main object is to protect building owners or "consumers" from incompetent or dishonest builders: cf. the statutory objects stated in s.3(b). In Cornelius v. Phillips [1918] A.C. 199, a statutory prohibition against money lending otherwise than at the lender's registered address was held to render the contract unenforceable. In Mayfair Trading Co. Pty. Ltd. v. Dreyer [1958] HCA 55; (1958) 101 C.L.R. 428, 449- 450, Dixon C.J., with whom McTiernan J. agreed, held that a money lender, who, in contravention of the statutory prohibition rendering the loan unenforceable, had succeeded in having it repaid, was liable to disgorge the payment received. The money, said the learned Chief Justice, was "obtained, paid over and retained without lawful authority, and there could be no answer on the facts to a simple claim on the part of the plaintiffs in a common money count. This is true of a count for money had and received ...". The prohibition being intended to protect the class of borrowing consumers, a person belonging to that class was entitled to recover moneys or securities transferred in pursuance of the illegal transaction: Bonnard v. Dott [1906] 1 Ch. 740. As an exception to the general rule of law, the fact that a transaction is illegal does not disbar a person whom the legislation is intended to protect from recovering money paid over in pursuance of the transaction. See Kiriri Cotton Co. v. Dewani [1960] A.C. 192, on which Mr Logan for the respondent plaintiff relied on this appeal.

It may be that the plaintiff does not need to go as far as this. Pincus J.A. and de Jersey J. do not think she does. If she was not legally obliged to make the payment, but did so under the mistaken belief that she was, then the money is recoverable in restitutionary proceedings even though the mistake was one of law. See David Securities Pty. Ltd. v. Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 C.L.R. 353. The plaintiff here has a finding to that effect in her favour. The mistake must, of course, be one without which the payment would not have been made: Kelly v. Solari [1841] EngR 1087; (1841) 9 M. & W. 54, 58; [1841] EngR 1087; 152 E.R. 24, 26. What Parke B. said there was directed to a mistake of fact; but, given that, since the decision in David Securities money paid under a mistake of law is now recoverable, the same general principle must also apply to recovering a payment made under a mistake of that kind. In determining whether or not the mistake of law has that character here, it is, in my respectful opinion, first of all necessary to determine whether the effect of s.42, and in particular of s.42(3), is to relieve the plaintiff of any legal obligation to pay the price or any part of it. It is only if there was no such legal obligation that the plaintiff can claim to recover her payment as money paid under a mistake of law. Once that is shown, it may not be necessary to make the further inquiry whether s.42(3) also has the effect of denying the defendant the right to retain the money so paid. The plaintiff may, on the authority of David Securities Pty. Ltd. v. Commonwealth Bank [1992] HCA 48; (1992) 175 C.L.R. 353 be entitled without more to recover the money paid. But if the payment was made in pursuance not merely of a mistake of law but under an agreement or transaction that was prohibited and made an offence by statute, then the plaintiff needs to go the further length of establishing that the statutory prohibition does not preclude her from recovering what she has paid.

Far from preventing the plaintiff from recovering the sum paid to the defendant for the building work carried out in contravention of the statutory prohibition, s.42(3) of the Act does, for the reasons already given, enable her to recover that payment. If the defendant was not entitled to any monetary consideration for carrying out building work in contravention of s.42, then, as I would interpret s.42(3), he is not entitled to retain the payment made to him for doing it. Because the prohibition in s.42 was enacted for the benefit of a class of persons of whom the plaintiff is one, she is entitled to recover the payment she made to the defendant. On that footing, it may be that she would have been entitled to recover the whole of the sum paid by her; but at trial and on appeal, she was prepared to allow to the defendant the value of the work, which in effect involves reducing the amount of $51,000 by the cost of rectifying the defects or deficiencies in the work done by him.

On that and, with one qualification to be mentioned, on the other matters raised on appeal, I agree with the reasons of Pincus J.A. and de Jersey J., which makes it unnecessary to add reasons of my own on those issues. That qualification concerns the defendant's submission that he was within the exception in s.42(6) of the Act as being an unlicensed person who had carried out building work "in partnership with" a person who was licensed under the Act in the required manner, who in this case was the licensed builder Costin Homes. However, the essential feature which distinguishes a partnership from other arrangements, such as a joint venture, by which two or more persons carry on business together is the existence of that element of mutual trust and confidence which each partner possesses in the skill, knowledge and integrity of every other partner. See Re Agriculturist Cattle Insurance Co. (Baird's Case) (1870) L.R. 5 Ch. App. 725, 732-733. As was recognised in that case, the result of the relationship between partners is that each partner is constituted the agent of the other or others for the purpose of carrying on the partnership business. The law was so long before the Partnership Act of 1891 was enacted.

It is true that the expression "partnership" is not always used in legislation in this limited sense. See, for example, Playfair Development Corporation Pty. Ltd. v. Ryan (1969) 90 W.N. (Pt. 1) (NSW) 504, 510-413. However, there is good reason to suppose that it was the limited meaning that was intended in s.42(6) of the Act. There are obvious reasons for recognising an exception from the general prohibition against unlicensed building when confined to a person who, although himself or herself unlicensed, was acting as the partner and agent of some other person who was appropriately licensed under the Act. It would almost entirely defeat the purposes of the statutory prohibition, as well as the statutory insurance scheme, if the exception extended to include independent contractors who themselves were not licensed in accordance with the requirements of the Act. Furthermore, in addition to the limited exception under s.42(6) in favour of building work carried out in the partnership, the Act provides in s.56(1)(a) that no contract to carry out building work may be entered into on behalf of a partnership except by the licensed contractor; and in s.56(1)(b) that it must be signed by the licensed contractor and have the names of the other partners indorsed on it. In the present case, the contract admitted by the defendant in his defence is alleged to have been made between the plaintiff and the defendant. There is no suggestion in the alleged contract that Costin Homes was a party to it, or that it complied with the provisions of s.56(1)(a) or s.56(1)(b).

There was, in any event, no evidence at the trial to suggest that the relationship between the defendant and Costin Homes was such as to constitute them agents for or partners of the other in the business of building. That is clear from the extract from the findings which is set out in the reasons of the other members of this Court on the appeal. Everything points to the fact that the defendant and Costin Homes carried on separate businesses of their own, even though it may be that they often worked in conjunction performing different aspects of the same building jobs. The evidence of their association falls well short of supporting a carrying on of business "in partnership" within the meaning of s.42(6) of the Act.

I agree that the appeal should be dismissed with costs.

JOINT REASONS FOR JUDGMENT - PINCUS JA AND de JERSEY J

The learned trial judge found that the respondent entered into two building contracts: one with a registered builder Costin Homes for the purchase of a house to be constructed, and another with the first appellant (and the second appellant) for "extras" in relation to that house, also termed "outside work". The respondent paid the appellants $51,000 under that latter contract.

The first appellant, who did the work, was not a licensed builder, and therefore, by carrying out the work, contravened the Queensland Building Services Authority Act 1991. Further, because of that Act, he was "not entitled to any monetary or other consideration" for having done the work.

"42. (1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor's licence of the appropriate class under this Act.

(3) A person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so."

The learned judge found that in making the payments totalling $51,000, the respondent mistakenly believed that the first appellant - the actual builder - "was entitled to payment by law and that she was obliged to pay him". On any reasonable construction of s.42(3), because the first appellant was not appropriately licensed, the respondent was not obliged to pay him in accordance with her apparent contractual obligation. Consistently with David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353, the judge would therefore have ordered the reimbursement of the $51,000, but he deducted $16,672.50, being the true value of the work done, which left the respondent with a judgment for $34,327.50. The deduction was made on the basis that s.42 did not exclude an unlicensed builder's entitlement to recover on a quantum meruit, an approach not challenged on the appeal.

The first ground of appeal was that the judge erred in finding that because of s.42(3) and the respondent's having been mistaken, she could recover the amounts so mistakenly paid. The appellants' argument focused on the ambit of the word "entitled" in sub-s(3), and especially whether, properly construed, it prohibited the retention of moneys already paid. The respondent was not however merely seeking the recovery of moneys paid under an illegal contract. The judge accepted her other, and primary, claim, which was that the moneys were repayable because paid under a mistake. In light of David Securities and the judge's finding of fact - which is unassailable - his conclusion necessarily followed, and renders unnecessary any further consideration of the precise scope of s.42(3). That is so because the respondent's mistake, as to her obligation to pay, was relevant on any reasonable interpretation of sub-s(3), which plainly excused her from any obligation to pay under the contract in these circumstances.

"(6) An unlicensed person who carries out, or undertakes to carry out, building work in partnership with a person who is licensed to carry out building work of the relevant class does not contravene this section."

The first appellant contended that he was protected because, though not himself licensed, he did the work "in partnership with" Costin Homes. The judge rejected that contention, and the appellants challenge his finding.

The judge offered the following analysis of the matter:

"The defendant has said that he and Costin built several homes over a period of two years, he generally obtaining the land and then contracting together with Kevin Costin to build a home, working together and obtaining prices and settling between them after each house. Costin as the licensed builder performed all carpentry work as well as supervising the building work generally while the defendant arranged quotes, materials and subcontractors. Each of them would purchase materials using trade accounts each had with particular suppliers and while there were no joint account or purchases in a partnership name some accounting was done as between them on a monthly basis or at the end of each job. The land upon which work was being carried out was in the name of the purchaser, generally the first defendant, and, obviously, the ultimate sale of the land with house constructed was made in that owner's name alone.

I accept that the defendant and Costin did in fact carry out building work in a manner that he and indeed both of them deposed, although I am not satisfied that they were carrying on business in partnership. I should add that in reaching this conclusion I am not swayed at all by the fact that the requirements of Section 56 of the Act as to carrying on business in partnership were not complied with. That provision is clearly not intended to be an exhaustive definition of the term, `partnership'. Rather I am led by the evidence in this particular action to conclude that the relationship between the defendant and Costin was a loose one, more in the nature of a joint venture but one designed probably to circumvent the provisions of the Act and to avoid the consequences provided in the Act for the first defendant's want of a license.

The evidence shows clearly that each of the alleged partners traded under his own name, with no joint backing [sic] account or trading account with suppliers. All their dealings with suppliers, subcontractors and other persons concerned with the building industry were made not as a joint entity but in the name of the first defendant or the second defendant or Costin Homes. There was no partnership name or business address or 'phone number. There was never a partnership tax return completed and on no occasion was there a real division of profits. It is apparent that Mr Costin was paid a substantial sum in respect of each contract relating to his building license but it was quite apparent to me that if a particular contract resulted in a sale at a significant profit, or indeed a substantial loss, any accounting between the alleged partners, designed to achieve equality between them would be an act of grace and favour rather than a matter of entitlement as partners.

Consequently, I am satisfied that the first defendant and Costin Homes, or Kevin Costin himself, did not as a matter of law carry out building work in respect of the subject premises as partners."

It was submitted for the appellants that the judge wrongly (apparently) focused on the concept of "partnership" set up by the Partnership Act 1891, because s.42 "does not require the existence of a strict partnership as known to law and recognises a somewhat looser relationship". We were offered no authority for that view. The term "partnership" is not defined in the Act, and there seems no particular reason why one should not adopt its well established meaning as expressed in and developed through the Partnership Act (cf. Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353, 358-360). In our view the judge's conclusion that the first appellant and Costin Homes were not carrying on business in partnership was reasonably open. Strong indications against the existence of a partnership were, as he found, that there was "on no occasion ... a real division of profits" (compare s.5(1) Partnership Act), and that neither party was responsible for the other's work (cf. s.12 Partnership Act as to the liability of partners). But all of the considerations to which he referred combined to provide ample warrant for his ultimate conclusion. Like the judge, we have not found it necessary to dwell on s.56 of the Queensland Building Services Authority Act: it suffices in the disposition of this appeal to confirm that the view to which his Honour came was one reasonably open and one with which this Court should therefore not interfere.

We turn to the next ground of appeal. The judge calculated the amount of the judgment by deducting from the amount paid by the respondent to the appellants ($51,000), the amount which he found, in essence, to be the true value of the work done ($16,672). The last mentioned amount was the difference between $28,854 - a valuation of the work done, if done properly, and $12,182.50, the cost of rectifying the inadequately done work. This ground of appeal asserts that the judge wrongly allowed $4,925 "for works which were not performed", rather than a sum of $4,605. A careful reading of the judgment and consequent appreciation of his Honour's approach show however that he did not take into account any amount in respect of works not performed. He proceeded differently, as explained above. We may mention that faced with the respondent's written submission to that effect, counsel for the appellants did not elaborate on this ground at the hearing of the appeal. The ground has no substance.

The appellants next claimed that his Honour erred in failing to find the respondent abandoned any claim to relief save for rectification of defects. The appellants relied on this passage in the cross-examination of the respondent at the trial:

"Now, Mrs Marshall, do you want these defects repaired and fixed or do you want - that's your claim here, isn't it?-- Yes.

You're not looking for monetary compensation for the defects, you want your house fixed, don't you?-- Yes, but I don't want John Marshall to do it because my husband gets so upset when he comes on the property now through what we've been through.

I see, all right, but I just want to make sure that you want your house fixed and you don't want damages. Do you understand what I'm saying?-- Well, we want moneys that haven't been spent on the property."

"For the defendant it was urged that the plaintiff should not recover damages, relying upon parts of her evidence where she appeared to forswear any such right. However, I understood her to be saying that in preference to a money award she wished to have her house completed according to what the defendant promised her. This Court does not have the power, alleged to reside in the Building Services Tribunal and Commission, to order the defendant to complete the work he undertook to do. A money judgment is the only remedy available to the plaintiff in this action and I do not construe her words as an abandonment of her entitlement to that relief."

Significantly, of course, a money claim was pursued on her behalf. The judge was entitled to take the view, as he expressed it, that she was indicating a preference for actual rectification, but not abandoning the money claim which was being pursued through the proceedings.

His Honour's reference in that passage to the Act concerns s.72, which provides:

"72.(1) If the Authority is of the opinion that building work is defective or incomplete, the Authority may direct the person who carried out the building work to rectify the building work within a reasonable period stated in the direction.

(4) If a direction is given under this section to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor."

The appellants' submission, which his Honour rejected, was that had the respondent utilized s.72, no loss would have occurred. The only relevant question, however, was whether the respondent was obliged to have recourse to the Authority in the discharge of her obligation to take reasonable steps to mitigate her loss.

In the course of his reasons, the judge said that he was "not satisfied that recourse to proceedings before the Building Services Tribunal would have availed the plaintiff". That view appears well justified. That Tribunal could not have required the first appellant himself - being unlicensed - to carry out the rectification work. There was, further, no obligation in Costin Homes to come to the first appellant's aid. How, in these circumstances alone, could the respondent reasonably have been required to proceed before that Tribunal rather than the Court? We say "in these circumstances alone" because there are other relevant considerations bearing on the comparative utility of proceedings before the Court on the one hand, and before the statutory tribunal on the other. The judge was right to conclude that the respondent did not, in litigating the matter, fail to take reasonable steps to mitigate her loss.

The appellants then challenged the manner of his Honour's assessment, submitting that the amount of any judgment should be limited to the cost of rectification. Why this should be so was not explained. The judge's approach of deducting, from the amount prima facie to be reimbursed ($51,000), the true value of the work done, was appropriate. There was,we note, no challenge to the particular amounts the judge took into account. (We have earlier mentioned the challenge concerning a sum of $4,925, but, as pointed out, the judge did not take that into account).

Finally, the appellants submitted that the judge erred in giving judgment against the second appellant as well as the first. They contended (in writing, and without oral elaboration at the appeal) that there was no evidence involving the corporate second appellant. But there plainly was. Merely as examples, one notes the circumstances that the respondent paid the $51,000 (in three unequal instalments) to the second appellant at the request of the first appellant; and that documents detailing the work to be done were on the second appellant's letterhead (see, for example, Ex.6). It was obviously open to the judge to make an order against both appellants to facilitate reimbursement of moneys which, because of the request of the first, had been paid into the hands of the second appellant and to adjust that amount by reference to a quantum meruit claim relevant, obviously enough, to work physically carried out by the first appellant but through the corporate entity of the second.

We would dismiss the appeal with costs to be taxed.