Are You Contracting To Do Specialist Work?

Key Point

• The Home Building Act (NSW) 1989's prohibition on unlicensed contractors performing "specialist work" could capture unsuspecting commercial contractors, even if the work is performed by a licensed subcontractor.

Under section 4 of the Home Building Act (NSW) 1989, a contractor who "contracts to do" residential or specialist building work without an appropriate licence cannot enforce its contract against other parties.

In the context of residential building work, the words "contracts to do" have been interpreted broadly, even extending in some circumstances to situations where the work is physically performed by a licensed subcontractor. As a result, there is a risk that unlicensed construction contractors whose obligations include a specialist work component could also be prevented from enforcing their contracts. As the possibility of recovering on a quantum meruit is unlikely to accurately reflect the bargain between the parties, contractors