NSW Caselaw
CASA MARIA PTY LTD v TREND PROPERTIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
5 MASON P, MEAGHER JA and FITZGERALD AJA 30 September 1998, 18 December 1998
[1998] NSWCA 53
10 Mason P I have had the benefit of reading the judgments of Meagher JA and Fitzgerald AJA, which set out the legislation and summarise the facts. I agree that the appeal should be dismissed with costs.
By reading together subs(1) and subs(2) of s92, one ascertains that the contract
15 of insurance required to be in force by s92(1) must be in force at the time a person contracts "to do any residential building work". Entry into a contract in contravention of s92(1) entails the sweeping and dire consequences spelled out in s94, regardless of whether the common law would have been so harsh and unyielding (cf Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215). Being
20 both penal and confiscatory of legal rights, s92(1) should be construed strictly.
As the appellant points out, s92(1) prohibits the entry into a legally binding commitment which entails a promise "to do any residential building work". This involves more than characterising a particular document taken as a whole and determining whether its essence is the proscribed commitment. I would therefore
25 teject the respondent's alternative submission (§7) that relies upon the undoubted fact that the substantial object and purpose of the arrangement recorded by the Deed of 6 June 1997 is not directed toward the performance of any building work. But this conclusion only reinforces the penal stringency of the legislative scheme.
30 'Pt2 of the Home Building Act 1989 contains the scheme of regulation of residential building work and specialist work. It casts light upon what is meant by contracting "to do" residential building work or specialist work. The key requirement is the holding of an appropriate licence (§4). Only those with the fitness, ability and capacity to carry out the contracts for which a licence is
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