Adam Carlton-Smith
Michelle Hall
Peter Lamont
Rebecca Roylance
Andre Dauwalder
Under section 42 of the Queensland Building Services Authority Act 1991, 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. "Building work" includes the provision of administration, advisory, management or supervisory services for building work. The Act does not provide for a Superintendent class of licence. Until recently, the question of whether a Superintendent is required to be licensed (whether this be despite the lack of a specific class of licence, or by falling within the ambit of a current class of builders licence) has never been judicially determined.
A recent BSA information statement, first published on 15 June 2007, advised that the functions of a Superintendent clearly constituted "building work" and therefore the person undertaking such work was required to hold an appropriate BSA licence. A recent Supreme Court decision, handed down on 18 December 2008, manages to cast doubt on the BSA's interpretation of the Act.
Supreme Court Decision
The decision of 18 December determined whether a Superintendent is required to be licensed under the relevant Act: see Puerto Galera Pty Ltd v JM Kelly (Project Builders) Pty Ltd [2008] QSC. The court held:
- the Superintendent appointed under the building contract between the applicant and the respondent did not carry out or undertake to carry out 'building work' within the meaning of s 42(1) and/or s 42(2) of the Queensland Building Services Authority Act 1991 as in force as at 5 February 2004; and
- there was no 'contractor's licence of the appropriate class' relevant to the functions of the Superintendent.
The implications of this decision are that a Superintendent who performed duties and obligations under a building contract pursuant to the relevant Act was not required to hold a BSA licence.
Work Performed up to 5 February 2004
The case considered work performed by a Superintendent under the Act as in force as at 5 February 2004 (reprint 8). In considering the definition of 'building work' under s42(2)(a) of the Act, the Court held:
- The Superintendent's contractual role did not require him to build or design the apartment block, therefore the extended definition of 'building work' under s 42(2)(a) and (b) must be considered to determine whether the Superintendent 'carried on building work'.
- For the extended definition to apply, the Superintendent must have either 'built' the structure in question or 'caused' it to be built; ie. he must be the person who brings about the building or construction.
- The Superintendent had a role in the adjustment of contractual rights between the parties and in ensuring the efficient and timely performance of the contract. His role was not to build. Therefore, he did not carry out (either directly or indirectly) building work under section 42(2)(a).
Under section 42(2)(b), 'building work' extends to the provision of "advisory services, administration services, management services or supervisory services" in relation to the building work. The Court noted that the relevant reprint of the Act did not contain a statutory definition of those services. The Court subsequently held that section 42(2)(b) does not apply to the provision of the services by someone who is not himself erecting or designing the structure (or causing it to be erected or designed).
The Court also noted that no Superintendent's licence' exists as a class of licence under the Act, and therefore if Parliament intended for Superintendents to be licensed, they would have established a specific class of licence.
Therefore, a Superintendent who performed work up to 5 February 2004 is not required to hold a BSA contractor's licence.
Work Performed Between 5 February 2004 and 21 December 2007
Section 42 of the Act was not substantially amended between reprint 8 (effective 1 September 2003) and reprint 8E (effective 23 April 2007). In addition, Parliament had not introduced a Superintendents class of licence within that period of time.
Therefore, work performed by Superintendents between 5 February 2004 and 23 April 2007 would not likely be required to be licensed.
Work Performed After 21 December 2007
Section 42 was substantially amended by the current reprint of the Act (8F) which came into force on 21 December 2007. The relevant amendments were:
- Omission of section 42(2): the extended definition of 'carrying out building work'.
- Retaining the definition of "carry out building work" under the Part 4A definitions. This is taken to mean:
- carry out building work personally; or
- directly or indirectly, cause building work to be carried out; or
- provide advisory, administrative, management or supervisory services for carrying out building work.
- Inclusion of a statutory definition of "advisory services", "administrative services", "management services" or "supervisory services".
It is presumed that section 42(2) was omitted as this was properly dealt with under the definition of "carry out building work". The most substantial amendment however was the introduction of statutory definitions of the abovementioned services.
Under the current Act and in light of the decision in Puerto Galera Pty Ltd v JM Kelly (Project Builders) Pty Ltd, it is unlikely that a Superintendent's functions would fall under (a) or (b) in the definition of "carry out building work". Whilst it is certainly arguable that a Superintendent's work may be regarded "management services" or "administration services", it nevertheless remains uncertain whether such work would fall within the ambit of the new statutory definitions, or whether a Court may be swayed in this regard.
Therefore, for work performed after 21 December 2007, it cannot be said with any certainty whether a Superintendent is required to be licensed. Only a strong judicial decision, or the introduction of a new class of licence, would create certainty in this regard.
Recommendation
HopgoodGanim recommends that Superintendents who have performed work since 21 December 2007 should err on the side of caution and obtain a Builder – Open licence from the BSA.
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