Landscaper sentenced for unlicensed contracting

According to a media release published by NSW Department of Finance, Services & Innovation, an unlicensed and uninsured landscaper who received more than $140,000 for unfinished work has been sentenced to a maximum of 18 months prison, with a non-parole period of six months.

The repeat offending “landscaper” did not hold a contractor licence or insurance as required by the Home Building Act 1989 (NSW) (the Act), and has been the subject of seven enforcement actions by NSW Fair Trading between 2003 and 2015.

The action by the Department appears to reflect a focus on licensing compliance, in particular in pursuing prosecutions.

The Act defines the following services as “residential building work” that is required to be completed by a licensed contractor:

  • construction of a dwelling
  • making of alterations or additions to a dwelling
  • repairing, renovation, decoration or protective treatment of a dwelling
  • roof plumbing work done in connection with a dwelling
  • specialist work done in connection with a dwelling
  • work concerned in installing in a dwelling any fixture or fixed apparatus that is designed for the heating or cooling of water, food or the atmosphere or for air ventilation or the filtration of water in a swimming pool or spa.

Further, the Home Building Regulation 2014 (NSW) prescribes the following work to be “residential building work”: Erection of pre-fabricated metal-framed home additions and structures; general building work; kitchen, bathroom and laundry renovation; structural landscaping; swimming pool building; bricklaying; carpentry; decorating; dry plastering; excavating; fencing; general concreting; glazing; joinery; metal fabrication; minor maintenance and cleaning; minor tradework; painting; roof plumbing; roof slating; roof tiling; stonemasonry; swimming pool repairs and servicing; underpinning or piering; wet plastering; wall and floor tiling; and waterproofing.

We discuss contractor licensing requirements, and the consequences of breach of the Act, in our March 2019 article which can be viewed here.

We remind homeowners to conduct a licence check before engaging any tradesperson or contractor to perform any of the above services, as unlicensed contractors are legally prohibited from performing residential building work.

In the media

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Unlicensed landscaper jailed for 18 months NSW Fair Trading Commissioner Rose Webb said Hynes, the sole director of Captain Trade Group Pty Ltd, accepted payments totalling $141,500 from five homeowners in 2017, for landscaping work which he did not complete and was uninsured for at the time (26 August 2019). More...

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Cases

White Constructions Pty Ltd v PBS Holdings Pty Ltd [2019] NSWSC 1166 BUILDING AND CONSTRUCTION LAW – CONTRACT – DAMAGES – Contract to design a sewerage system for a subdivision and submit it for approval – alleged breach consisting of failure to create and submit a design acceptable to the approval authority allegedly having the effect of delaying completion of the subdivision – whether breach established – whether damages established – programming experts called on question of delay – appropriate method of delay analysis – requirement to have regard to evidence – requirement for the plaintiff to establish damages. HELD – no breach established – damages not established.

Islam v Javam 1147 COSTS – where an unnecessary appeal to this Court has been generated as the result of conduct by both plaintiff and defendant – no order as to costs. Submission: The defendant has come up with a defence to characterise it and somehow try and tie it to a home building contract. My submission is that by the defendant doing that, my client shouldn’t be dragged into the Home Building Act just because the defendant wants to put a defence on that ties it to the Home Building Act.

Stefanis v Oneview Construction Pty Limited [2019] NSWCATAP 218 APPEAL – Expert evidence – Section 18F defence – Leave to appeal

Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220 HOME BUILDING – rectification and completion costs – damages for late completion DISCRETION – order making power under s 48O of Home Building Act – application of preferred outcome principle

DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221APPEALS – Building and Construction – Contract – Repudiation – Adequacy of findings

Simcoe v Bate [2019] NSWCATAP 216APPEAL – failure to appear – whether reasonable opportunity to be heard – whether denial of procedural fairness – whether rehearing should be ordered – construct the stable block, including ground work, concrete slab – Leave to appeal on grounds other than a question of law is refused

The Owners SP 89023 v AT Building Pty Ltd (No 2) [2019] NSWCATAP 215 COSTS – home building – appeal from first instance costs order The Owners – SP 89023 must pay the respondents costs of and incidental to appeal AP 19/00156 on the ordinary basis as agreed or assessed.