McNab Constructions Australia P/L v Queensland Building Services Authority [2010] QCA 380
[2010] QCA 380
Court of Appeal (Qld)|2010-12-23|Before: Margaret McMurdo P, Holmes and Chesterman, JJA, Separate reasons for judgment of each member of the Court, Margaret, McMurdo P and Holmes JJA concurring as to the orders made, Chesterman, JA, dissenting
Margaret McMurdo P, Holmes and Chesterman, JJA, Separate reasons for judgment of each member of the Court, Margaret
Catchwords
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL
APPROACHES TO INTERPRETATION – TO GIVE OPERATION
AND EFFECT TO THE ACT
– where the applicant contracted with the principal to manage the
Source
Original judgment source is linked above.
Catchwords
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERALAPPROACHES TO INTERPRETATION – TO GIVE OPERATIONAND EFFECT TO THE ACT– where the applicant contracted with the principal to manage theconstruction of a residential apartmentbuilding – where the respondentissued 15 directions under s 72 of the Queensland Building ServicesAuthority Act 1991 (Qld) to the applicant to rectify defects in theconstruction – where the Act was amended with effect from 21 December2007– where the first direction was made prior to the amendments and all otherdirections made after the amendments –where the Tribunal found againstthe applicant – where trial judge found the respondent lacked the power toissue the firstdirection but had the power to issue the subsequent directions– whether the applicant was a person who “carried outthebuilding work” under s 72 before and after the amendmentsCommercial and Consumer Tribunal Act 2003 (Qld), s 100(1), s
104
District Court of Queensland Act 1967 (Qld), s
118(3)
Queensland Building Services Authority Act 1991 (Qld),
s 3(1)(i), s 3(a)(ii), s 3(b), s 3(c), s 30A, s 30B, s 42, s 42(1),
s 42(2)(b), s 43B, s 43C, s 72, s 72(5)(f), s 72(10),
s 72(11)(b), s 72(14), sch 2
Baulderstone Hornibrook Pty Ltd v Beneficial Finance Corporation
Limited (1999) ANZ ConvR 634
[1998] QCA
351, cited
Baulderstone Hornibrook Pty Ltd v Beneficial Finance
Corporation Limited [1998] QCA
430, cited
Builders Licensing Board v Sperway Constructions (Syd) Pty
Ltd (1976) 135 CLR 616
[1976] HCA 62, cited
George Hudson Ltd v
Australian Timber Workers’ Union (1923) 32 CLR 413
[1923] HCA 38,
cited
Re a Solicitor’s Clerk [1957] 1 WLR 1219
[1957] 3 All ER
617, cited
Puerto Galera Pty Ltd v JM Kelly (Project Builders) Pty
Ltd [2008] QSC 356, considered
R v His Honour Judge Given, ex parte
Builders’ Registration Board of Queensland [1985] 2 Qd R 32,
cited
Judgment (21 paragraphs)
[1]
The application of the amendments which QBSA contends is correct falls squarely within Dixon CJ's formulation,
[2]
"... as applying to facts ... that have already occurred in such a way as to ... impose or otherwise affect ... liabilities ..."
[3]
which attracts the presumption. To adapt the analysis of Kaye J in Nicholas the amendments to s 72 do impose a liability for conduct antecedent to the enactment of the amendments.
[4]
[129] On the facts of this case there is nothing on which the amendments could act prospectively. The applicant did not provide building work services on any day after 21 December 2007. If the applicant was "the person who carried out the building work" for the purposes of subsection (1) it could only be because the designation of one who is taken to have carried out the work by providing building work services under a construction management contract applies to a contract made, performed and terminated prior to the amendment. Such a legislative operation is truly retrospective and offends the presumption. Unless the language of the amendment clearly indicates it is to have that operation it should be construed as speaking to the future only.
[5]
[130] There is no such indication. There is nothing in the insertion of paragraph (f) to s 72(5) that conveys such an indication. It is expressed in words which speak of the present, "a ... manager engaged ... to provide ... services ...", and this applies to any such person on and after the amendment.
[6]
[131] Baulderstone Hornibrook in my respectful opinion mistakenly assumed itself to be on all fours with Judge Given without close examination or analysis. Accepting that this Court should depart from an earlier decision "cautiously and only when compelled to the conclusion that the earlier decision is wrong" (per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen (1990) 169 CLR 245 at 269), I conclude that this is such a case. That decision, if followed, is capable of working substantial hardship, not to say injustice. The unfairness arises by imposing a liability upon persons such as the applicant who, at the time they contracted, were unaware of the possibility that their contract might expose them to a new set of liabilities. A construction manager who contracted after the amendments would know of the potential risk that it might be directed to repair defective work and adjust its contract accordingly. It could increase the price to reflect the risk, or take out a policy of insurance, or bargain for terms in the contract that gave it power to compel a trade contractor to make good defective work. It could obtain an indemnity from the principal against its liability to QBSA. The retrospective imposition of liability on a construction manager occurs in circumstances where it could not take any of the measures described to protect itself.
[7]
[132] The primary judge was bound by Baulderstone Hornibrook to decide as he did. For the reasons I have given that case should be regarded as wrongly decided. The principles I have discussed lead to the conclusion that unless s 72(5)(f) inserted into the Act on 21 December 2007 was intended by Parliament to be retrospective in operation the applicant was not a person who was taken to have carried out building work when it performed its contract to provide contract management services for the apartment building at Skyring Terrace Teneriffe. There is no legislative intention that the amendment be retrospective. The cases relied upon by QBSA to argue that the operation of s 72(5)(f) on the applicant's performance of its contract would not make it retrospective are not on point. The 2007 amendments to the Act apply prospectively only, to those who provide the described services subsequent to 21 December 2007. The applicant was therefore not a person who carried out building work for the purposes of the Act in relation to the building of the apartments. It was not a person to whom QBSA could address directions to rectify defective work.
[8]
[133] I would give the applicant leave to appeal and the respondent leave to cross-appeal. The cross-appeal should be dismissed with costs. The appeal should be allowed and the orders made by the District Court on 7 April 2010 be set aside. Instead there should be orders that the applicant's appeal to the District Court from the Commercial and Consumer Tribunal on 26 August 2009 be allowed and a further order that the 15 decisions made by the respondent to direct the applicant to rectify defective work to the common property and to apartments 327, 8, 618, 627, 337, 603, 628, 615, 320, 620, 617, 604, 601 and 319 be set aside. The respondent should pay the applicant's costs of the appeal to the District Court and of the application for leave to appeal and of the appeal to this Court.
[9]
[1] See statutory declaration of Michael McNab, 15 October 2008, ex MJM 1, AB 167-173.
[10]
[3] The relevant amendments to the QBSA Act are set out in Chesterman JA's reasons [32]-[36].
[11]
[4]McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2009] CCT QR 023-08, QR 024-08 and QR 197-07, Brisbane, 26 August 2009, Mr P Lohrisch.
[12]
[5]McNab Constructions Australia Pty Ltd v Queensland Building Services Authority BD 2699 of 2009, 15 March 2010, Dorney QC DCJ, 24 March 2010 and 7 April 2010.
[13]
[6] It is common ground that the relevant reprint is Reprint No 8B.
[14]
[12] Relevantly set out in [30] of Chesterman JA's reasons.
[15]
[13] Relevantly set out in [50]-[54] of Chesterman JA's reasons.
Puerto Galera Pty Ltd v JM Kelly (Project Builders) Pty Ltd[2008] QSC 356, considered
[85] The submission reads too much into the judgment. What was meant appears from its context and in particular the authorities cited by his Honour for the proposition relied on. Mason J referred inter alia to Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192, in which Windeyer J explained (208-9):
[86] For that rule Windeyer J cited two authorities: Attorney-General v Birmingham Tame and Rea District Drainage Board [1912] AC 788 and Attorney-General v Vernazza [1960] AC 965. In the first of those cases Lord Gorell said (802):
"The question to be decided is whether the power to make a rectification order under s 59(1) extends to work performed before the 1979 Act. That provision is, according to its terms, literally capable of applying ... to authorize ... an order. Does the interpretive presumption against retrospectivity displace that conclusion? The test ... is whether from the legislation the intention appears 'with reasonable certainty' that it applies to facts or events that have already occurred 'in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past events': Maxwell v Murphy[1957] HCA 7; (1957) 96 CLR 261, 267. The performance of the building work ... is ... a fact or event that has already occurred ... but ... since the 1982 amendment ... that fact or event has not formed a criterion or condition of the power to make an order under the section. It was replaced in 1982 by a requirement that the fact be that the work 'is faulty or unsatisfactory', which is an element in the definition of s 59(1) having no reference to any past event. It is true that s 59(1) retains the requirement that the building work should have been performed by a person 'who is or was ...' a registered builder; but those words are no more than a description of the person which is satisfied in a present sense in relation to Bartlett, he being registered as a builder at the date of the order."
[122] That case, and George Hudson, were concerned with the imposition of a liability on and from the date of the enactment so it was prospective only. The liability operated on facts which existed at the time of the enactment, and continued thereafter. The legislation was not retrospective because it operated on a state of affairs (the agreement and the water pipes) which existed when the Act was passed and with respect to which new obligations were imposed for the future. The Acts in question "spoke only as to the future", as Hayne, Heydon and Crennan JJ put it in Chang v Laidley Shire Council [2007] HCA 37; (2007) 234 CLR 1 at 33.
[125] The same point was made in Re: John [1999] QCA 444; [2000] 2 Qd R 322 at 325, 326. The court (McMurdo P, Davies and Thomas JJA) said: