Garpace Pty Limited t/as Broadview Aluminium v De More Constructions Pty Limited [2000] NSWSC 849

New South Wales Supreme Court

CITATION : Garpace Pty Limited t/as Broadview Aluminium v De More Constructions Pty Limited [2000] NSWSC 849 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11929/00 HEARING DATE(S) : 23 August 2000 JUDGMENT DATE : 28 August 2000

PARTIES : Garpace Pty Limited t/as Broadview Aluminium (Plaintiff) De More Constructions Pty Limited (Defendant) JUDGMENT OF : Dunford J

LOWER COURT Local Court JURISDICTION : LOWER COURT 1030/99 FILE NUMBER(S) : LOWER COURT Magistrate Swanson JUDICIAL OFFICER :

COUNSEL : SOLICITORS : PJ Donellan & Co. - Mr A McKelvey (Plaintiff) The Builders' Lawyer - Mr D Doyle (Defendant) CATCHWORDS : BUILDING & CONSTRUCTION - subcontractor - not licenced - whether subcontractor - unlicenced - enforceability of subcontract against principal builder LEGISLATION CITED : Home Building Act 1989, ss 3, 4, 6, 7-7D, 10(3) CASES CITED : Australasian Concrete Services v Multiplex Constructions [1999] NSWSC 1140 DECISION : See para 28 & 29.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Monday, 28 AUGUST 2000 11929/00 - GARPACE PTY LIMITED T/AS BROADVIEW ALUMINIUM v DE MORE CONSTRUCTIONS PTY LTD JUDGMENT 1 HIS HONOUR: This appeal under Pt 5 of the Justices Act 1902 from the decision of Magistrate Swanson in the Local Court at Gosford raises the question whether a subcontractor who has performed residential building work for a principal builder can recover any moneys due to it under the subcontract when it does not hold a licence under Pt 3 of the Home Building Act 1989, formerly the Building Services Corporation Act 1989 ("the Act"). 2 The plaintiff is an aluminium window fabricator and installer and was not at the relevant time licenced under the Act. The defendant is a licenced builder who was retained by a number of third parties to construct residences at various addresses. The defendant retained the plaintiff to fabricate and install aluminium windows at such addresses. The plaintiff asserts that it was retained as a subcontractor and did the above mentioned work on behalf of the defendant. 3 The plaintiff brought proceedings in the Local Court seeking to enforce its contract with the defendant. Although not pleaded in the Grounds of Defence, the defendant by Notice of Motion sought to strike out the plaintiff's claim on the ground that it was not entitled to enforce its contract with the defendant because such recovery is expressly excluded by s 10 of the Act. 4 The Notice of Motion was heard by the Magistrate as a preliminary point of law and his Worship held that the plaintiff was required to hold a licence under the Act to contract with the plaintiff to do the work the subject of the claim, and that the plaintiff was not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by the defendant. Hence this appeal. 5 The defendant relies on s 10 (3), which is in Div 1 of Part 2 of the Act and is as follows: "A person who contracts to do work in contravention of this Division or who contracts to do work under a contract that does not comply with this Division: (a) is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, but (b) is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person."