Most Read Contributor in Australia, September 2016
Section 42(4) of the Queensland Building Services Authority Act
(QBSA Act) provides that if you carry out
"building work" without the appropriate licence
(QBSA licence) then you are "not entitled to
any monetary or other consideration" for carrying out that
In Ooralea Developments Pty Ltd v Civil Contractors (Aust)
Pty Ltd & Anor, a civil contractor recently found that its
security for payment claim was void because it did not have the
appropriate QBSA licence under the QBSA Act for the construction
and installation of roads and pipes for a new estate.
The contract was for the construction of earthworks, roadworks,
stormwater drainage, sewer and water reticulation in a new estate
development. The Contractor did not have any QBSA licences. The
Contractor served the Respondent with a payment claim pursuant to
Building and Construction Industry Payments Act 2004
(BCIPA) and the Respondent refused to pay.
The critical issue was whether roadworks and pipeworks were
building work under the QBSA Act. The Contractor argued that the
QBSA Act regulations expressly excluded the construction of a
'water reticulation system, sewerage system or stormwater
drain, outside the boundaries of private property' and the
construction of a 'road' from being building work and, as a
result no licence was needed.
The Court held that building work had a very wide definition
under the QBSA Act as it includes 'any fixed structure',
which includes structures which are not buildings. Both the
pipeworks and roads were clearly structures built on land.
In relation to roads, even though the property on which the road
was built had been subject to development approval by the local
authority, the road had been notified as being for public use. As
the road had not been declared, it was not a road to which the
exclusion applied. Therefore, the Contractor had no right to make a
payment claim for the roadworks under the QBSA Act or BCIPA as it
did not have a licence.
Civil contractors must always ensure that they hold the
appropriate QBSA licence, or they may not have an entitlement to be
paid under BCIPA, have difficulty recovering any payments under the
contract, and may also be prosecuted for breach of the QBSA Act.
This will apply even where a licence is held but the scope of work
for the licence does not cover the work being carried out.
While this is not a new change to the QBSA Act, it is now very
clear that civil contractors must closely look at the work to be
carried out and ensure they have the appropriate QBSA licence to do
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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