The importance of having the appropriate licences and only carrying out work that the contractor is lawfully entitled to carry out has been demonstrated by Agripower Australia ltd v Queensland Engineering & Electrical Pty Ltd & Ors [2015] QSC 268. The contractor in this case was held to not be entitled to any payment claims under the Building and Construction Industry Payments Act 2004 (“BCIPA”). This case is consistent with Cant Contracting Pty Ltd v Casella [2007] 2 Qd R 13 where the contractor was not entitled to progress payments under the BCIPA for a breach of section 42 of the then Queensland Building Services Authority Act 1991 (now the Queensland Building and Construction Commission Act 1991) for unlawfully carrying out building work. Breach of the Electrical Safety Act 2002 and the Professional Engineering Act 2002 now have the same effect.
Douglas J was deciding upon breaches of section 56 of the Electrical Safety Act 2002 (Qld) and section 115(1) of the Professional Engineering Act 2002 (Qld). Section 56(1) provides that a person must not conduct a business or undertaking that includes the performance of electrical work unless the person is a holder of an electrical contractor licence that is in force. Section 115(1) concerns who may carry out professional engineering services.
His Honour held that Queensland Engineering & Electrical Pty Ltd had breached both the Electrical Safety Act 2002 and the Professional Engineering Act 2002. The Professional Engineering Act 2002 contains an express provision in section 141(2) that prohibits a person from becoming entitled to any monetary or other compensation for performance or carrying out of professional engineering services. Despite the Electrical Safety Act 2002 not containing any express provision, Douglas J made reference to Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 to construe the Act as having the object of public safety and therefore having a prohibition on entering into a contract with an unlicensed person.This resulted in the contract being illegal and there was no right to receive progress payments under the BCIPA and the adjudication decision was declared void.
What this means for you
It is therefore vitally important that Engineers and Electricians are aware of the scope of the work they are able to carry out and what licence requirements there are. A failure to do so will result in illegal contracts and no right to any payment under the BCIPA.
A link to the case can be found here: