Unlicensed Builders Cannot Use Security Of Payment Legislation In Queensland

In a judgment which will interest all participants in the construction industry, a recent Queensland Court of Appeal decision held that unlicensed builders in Queensland cannot utilise the Building and Construction Industry Payments Act 2004 (Qld) (the Payments Act).

The Court of Appeal in Cant Contracting Pty Ltd v Casella [2006] QCA 538 overturned the Supreme Court judgment of Chief Justice de Jersey who had found that a claimant, despite being unlicensed and subject to the limitations placed on recovering sums under section 42 of the Queensland Building Services Authority Act 1999 (Qld) (QBSA Act), could recover monies claimed in a payment claim as a statutory debt under section 19(2) of the Payments Act. Importantly, the Court of Appeal decision means that the position in relation to unlicensed contractors and their ability to use the Payments Act in Queensland is different to that in New South Wales.