De More v Garpace [2001] NSWCA 350

De More v Garpace [2001] NSWCA 350

A subcontractor who does not hold a contractor’s licence under the Home Building Act 1989 cannot enforce a subcontract for residential building work or obtain damages for its breach (ss 4, 10(3)). The legislative language and structure require that both principal contractors and subcontractors be licensed.

Parties
Appellant: De More Constructions Pty Limited; Respondent: Garpace Pty Limited (t/as Broad View Aluminium)
Jurisdiction
Australia
Judgment Date
04 October 2001
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed with costs.
Legal Topics
Breach of Contract, Licensing Requirements, Enforceability of Contracts, Home Building Act 1989
Contract Law Statutory Interpretation Building and Construction Law Breach of Contract Licensing Requirements Enforceability of Contracts Home Building Act 1989

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Parties

De More Constructions Pty Limited

Appellant

Garpace Pty Limited (t/as Broad View Aluminium)

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether a subcontractor not licensed under the Home Building Act 1989 can enforce a subcontract for residential building work.
  2. 2 Statutory construction of ss 4, 5, 10(3), 12, and 16 of the Home Building Act 1989; distinction between employees and subcontractors under the Act.

Ratio Decidendi

A subcontractor who does not hold a contractor’s licence under the Home Building Act 1989 cannot enforce a subcontract for residential building work or obtain damages for its breach (ss 4, 10(3)). The legislative language and structure require that both principal contractors and subcontractors be licensed.

Court Disposition

Appeal allowed with costs.

Orders

  • Orders of the Common Law Division set aside.
  • Respondent to pay costs of proceedings in the Common Law Division.