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  • Writer's pictureJohn Lowry

When is a Civil Contractor not a Civil Contractor (Part 2)

In June this year I wrote about the dangers of unlicenced Civil Contractors accepting or doing work that might be regarded as Building Work under the QBCC Act and inadvertently foregoing their right to use the Building Industry Fairness (Security of Payment) Act to enforce payment and even to lose their right to payment for completed work.

You can read what I said here >>

A recent Queensland Supreme Court judgement clarifies some of the issues around the work unlicensed civil contractors are entitled to do. The Trustee For Hardev Property (Dev 10) Unit Trust v Palmgrove Holdings Pty Ltd & others [2019] QSC 208

Question 1) Do building services (drainage and water) for a residential subdivision required a QBCC licence?

The answer in not totally straightforward. The QBCC regulations (Schedule 1, S.11) excludes services "other than this connecting to a particular building" from the licencing regime. So if you are working on a job that is associated with a particular building (eg., a shopping centre) you must have a QBCC builder's licence.

However, in the above case, the judge decided that, in the case of a subdivision where the lots are not yet registered, then the lots are not "a particular building".

Since it is usual to register the lots on completion of construction work, after the final survey.

Answer: an unlicenced civil contractor can subcontract building services on a residential subdivision, as long as a particular building (or lot) can not be identified before or at the time of construction

Question 2) Can an unlicenced civil contractor subcontract work that requires a QBCC licence to a suitably licenced contractor.

Answer: The QBCC Act (Schedule 1A, S.8) now allows an unlicenced head contractor to engage (or intend to engage) an appropriately licenced person to carry out building work, provided it is not residential or domestic building work.

A word of warning - The judge in the above case accepted the contractor's submission that it intended to engage suitably licenced contractors to undertake building work. However, it would be very wise to specifically nominate in a tender of contract the names of licenced contractors who the head contractor intends to engage for the work. An unlicenced civil contractor should also be well aware of what is and what is not building work under the QBCC. (fences, retaining walls, concrete work, services etc.,). In no case should you allow a licenced contractor to stray into work for which it is not licenced, no matter how small it might seem.

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