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  • Writer's pictureJohn Lowry

What's the difference between a road and a footpath?

Answer: You had better find out if you want to get paid.

It can be a fine line between getting paid or not. Here is another example of the confusion that can surround the requirement for QBCC builders' licencing.

In a recent Queensland Supreme Court Case (Galaxy Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd t/a CCA Winslow [2020] QSC 51), the judge decided that a contractor was not licenced to build a bus shelter and was therefore not entitled to be paid for its work under section 42 of the QBCC.

The dispute arose in relation to a $1.3 million payment claim which was referred to adjudication.

The contractor held a "Builder restricted to structural landscaping" QBCC licence. Significantly, only a minor part of the works which the contractor was contracted to do were outside the terms of its licence. The shed part of the shelter fell within an exemption within the licence. However, her Honour considered that this did not cover a standalone bus seat and bike rack.

While there is a “busway” exemption, the seat and bike rack did not fall within this. It was also suggested that they would fall within a general “roads” exemption. After considering the history of the road in question and the laws surrounding it, her honour found that most of the works were in respect of a road.

However, her Honour disagreed that the bus seat and bike rack were, as they were on a footpath, which is expressly dealt with in the relevant regulations. Thus, a separate licence was required to build the seat and bike rack.

While the first respondent was therefore only not licenced to undertake a small portion of the total works, her Honour considered that this issue infected the entire contract such that the first respondent was precluded by s 42 of the QBCC Act from being paid for any of the work under it.

Takeaway - When entering a contract and subcontract, make absolutely sure you are licenced to do all the work. It is common to be asked to undertake small / ancillary work that you are not specifically licenced to undertake. Do not accept any work that is outside your QBCC licence. It is not simple, but you must do it.

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