Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd & Anor [2020] QCA 219 (2020) 6 QR 38

SUPREME COURT OF QUEENSLAND CITATION: Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd & Anor [2020] QCA 219 PARTIES: CHAPEL OF ANGELS PTY LTD TRADING AS CHAPEL OF ANGELS ACN 154 327 867 (applicant) v HENNESSY BUILDING PTY LTD TRADING AS HENNESSY BUILDING ACN 117 587 998 IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE HENNESSY FAMILY TRUST ABN 45 515 151 376 (first respondent) JOHN PAUL HENNESSY (second respondent) FILE NO/S: Appeal No 4767 of 2019 DC No 4124 of 2014 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time ORIGINATING COURT: District Court at Brisbane – [2018] QDC 218; [2018] QDC 248 (Porter QC DCJ) DELIVERED ON: 7 October 2020 DELIVERED AT: Brisbane HEARING DATE: 22 November 2019 JUDGES: Fraser and Philippides and McMurdo JJA ORDER: The application for an extension of time within which to apply for leave to appeal is refused with costs. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where the reasons for judgment were published on 12 November 2018 and the orders were made on 11 December 2018 – where the applicant filed an application for an extension of time within which to apply for leave to appeal out of time, on 3 May 2019 – where a director of the applicant deposed that the applicant decided not to appeal but later reconsidered its decision – whether, taking into account the merits of the proposed appeal, an extension of time is demonstrably necessary to prevent a substantial injustice RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – UNENFORCEABLE OR VOID CONTRACT – UNENFORCEABLE CONTRACT – BUILDING CONTRACTS – where the applicant and the first respondent -- 1 of 21 -- 2 executed a building contract by which the first respondent undertook to construct a chapel – where the first respondent held a “builder – low rise” licence which authorised the construction of buildings in the chapel’s class, excluding buildings involving Type B construction under the Building Code of Australia – where the chapel involved Type B construction – where the contract was therefore unenforceable by the first respondent under s 42 of the Queensland Building Services Authority Act 1991 (Qld) as the first respondent did not hold a contractor’s licence of the appropriate class for all the building work it undertook to carry out under the contract – where, by the time the dispute arose, most of the work had been completed and the applicant had made progressive payments to the first respondent – where the first respondent also held a carpentry licence – where the applicant claimed repayment of the amounts it had paid to the first respondent – where the first respondent counterclaimed for reasonable remuneration as restitution for the work it had carried out – where s 42 limits the amount of remuneration a party can recover for unlicensed work – whether the first respondent was entitled to any remuneration for the work it had done on the chapel – whether the first respondent was entitled to recover reasonable remuneration, unqualified by s 42, for work that was within the scope of its carpentry licence APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – COURSE OF CONDUCT AT TRIAL – GENERALLY – where the applicant is seeking to raise arguments in its proposed appeal that it did not raise at the trial – where, in particular, the applicant seeks to agitate an argument that a key expert report relied upon by the respondents at trial should not have been accepted by the primary judge and contained various inaccuracies – where no objection was taken to the expert report at trial and it was the subject of extensive cross examination – whether the proposed challenges to the expert report could have been met by calling additional evidence at trial – whether leave to appeal should be granted to enable the applicant to raise these new arguments Queensland Building Services Authority Act 1991 (Qld), s 30, s 42 Queensland Building Services Authority Amendment Act 1999 (Qld), s 21 Queensland Building Services Authority Regulation 2003 (Qld), s 8, s 14, sch 2 Baguley v Lifestyle Homes Mackay Pty Ltd [2015] QCA 75, applied Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) (2009) 254 ALR 661; [2009] QCA 75, considered -- 2 of 21 -- 3 Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QSC 179, cited Dart Holdings Pty Ltd t/as A Dart & Co v Total Concept Group Pty Ltd [2012] QSC 158, considered Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164; [2019] HCA 32, cited Marshall v Marshall [1999] 1 Qd R 173; [1997] QCA 382, considered Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5, applied Peet Ltd & Ors v Richmond (2011) 33 VR 465; [2011] VSCA 343, cited Sopov v Kane Constructions Pty Ltd (No 2) (2009) 24 VR 510; [2009] VSCA 141, cited Spencer & Anor v Hutson & Ors [2007] QCA 178, applied Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196; [1998] QCA 417, considered Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12, applied COUNSEL: S Taylor for the applicant P A Travis for the respondents SOLICITORS: Ohlson’s Lawyers and Barristers for the applicant Axia Litigation Lawyers for the respondents [1] FRASER JA: On 6 December 2012 the applicant (“Chapel of Angels”) and the first respondent (“Hennessy Building”) executed a building contract by which Hennessy Building undertook to construct a wedding chapel and surrounds at Montville and Chapel of Angels agreed to pay to Hennessy Building the “Contract Sum” adjusted from time to time in accordance with the building contract. The building contract obliged Chapel of Angels to make regular payments on account of the Contract Sum throughout the progress of the work in response to payment claims by Hennessy Building. Disputes arose between them after Hennessy Building had completed most of the work required by the building contract and Chapel of Angels had made progressive payments on account of the Contract Sum totalling $632,615.64. [2] Chapel of Angels subsequently claimed repayment of that amount upon the ground that the building contract was invalid, amongst other claims in proceedings in the District Court. Hennessy Building defended the claim and counterclaimed for orders including for money payable to it under the building contract or, if the building contract were found to be unenforceable by it, for reasonable remuneration as restitution for the work it had carried out. [3] The issues at the trial before Porter QC DCJ, so far as they remain relevant in Chapel of Angels’ application for an extension of time within which to apply for leave to appeal to this Court, involve the construction and application to the facts of s 42 of the Queensland Building Services Authority Act 1991 (Qld) (“the Act”).1 Contravention of s 42 is made an offence by s 42(9). Subsections (1), (3) and (4) of s 42 provide: 1 The relevant version of the Act is in a reprint that was current from 1 January 2011 to 31 October 2013. The Act has since been renamed the Queensland Building and Construction Commission Act 1991 (Qld). -- 3 of 21 -- 4 “(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act. (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed— (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following— (i) the supply of the person’s own labour; (ii) the making of a profit by the person for carrying out the building work; (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.” [4] One of the questions at the trial was whether Hennessy Building held “a contractor’s licence of the appropriate class” in terms of s 42(1). [5] Section 30(1) of the Act provides for the issue of a contractor’s licence authorising the licensee to carry out all classes of building work or to carry out building work of one or more classes specified in the licence. Section 30(2) provides that contractors’ licences are to be divided into classes by regulation according to whether the licence relates to all classes of building work or is limited to a specified class or classes of building work. In the latter case, the classification is to be “according to the class or classes of building work to which [the licence] relates.” Pursuant to s 30(2), s 14 of the Queensland Building Services Authority Regulation 2003 (Qld) (“the Regulation”)2 provides that contractors’ licences are divided into the classes specified in schedule 2. Schedule 2 contains 60 parts, each of which describes a licence class, the scope of work within that licence class, and the requirements (technical, financial, and managerial or experience) for that licence class. [6] Hennessy Building held two contractor’s licences: a “builder – low rise” licence and a carpentry licence. The scope of work for the “builder – low rise” licence is described in four paragraphs of item 2 in part 4 of the schedule. Paragraph (1) refers 2 The relevant version of the Regulation is the reprint current as at 28 September 2012. -- 4 of 21 -- 5 to building work on a class 1 or class 10 building. Paragraph (3) refers to the preparation of certain plans and specifications. Paragraph (4) excludes matters which are not presently relevant. The directly relevant paragraph provides: “(2) Building work on classes 2 to 9 buildings with a gross floor area not exceeding 2000m 2 , but not including Type A or Type B construction.” [7] The primary judge held that the chapel was a class 9b building3 which (because it had a rise in storeys of two) required Type B construction,4 and that “in undertaking under the Building Contract to construct the Chapel building, Hennessey [sic] undertook to carry out building work without the appropriate class of license” in breach of s 42(1).5 [8] The primary judge recorded that Hennessy Building admitted that if it did not hold the appropriate class of contractor’s licence Chapel of Angels was entitled to recover all of the payments it had made to Hennessy Building under the building contract.6 The primary judge therefore held that Chapel of Angels was entitled to recover $632,615.64 from Hennessy Building and that Hennessy Building’s counterclaims to enforce the building contract must fail.7 [9] The primary judge also held that s 42(3) only prohibited recovery of reasonable remuneration unqualified by s 42(4) for work carried out that was not within the scope of any licence held by the person carrying out that work, so that work that was within the scope of any such licence may be the subject of a non-contractual claim which is unaffected by s 42(4).8 [10] The primary judge therefore held that the law entitled Hennessy Building to recover: (a) reasonable remuneration for so much of the building work it had carried out which was within the scope of any licence it held; and (b) reasonable remuneration, as modified by s 42(4), for so much of the building work it had carried out which was not within the scope of any licence it held. [11] The primary judge identified as the only remaining issue upon Hennessy Building’s counterclaim the identification of the sum to which Hennessy Building was entitled.9 The primary judge concluded that: (a) The expert report of Mr Carey, a quantity surveyor, permitted the calculation of the amount to which Hennessy Building was entitled.10 (b) The carpark and external works were within Hennessy Building’s “builder – low rise” licence and Chapel of Angels made no submission to the contrary.11 (c) Hennessy Building’s carpentry licence authorised a substantial part of the building work of the chapel (“licensed work”).12 3 The classification is found in the Building Code of Australia. 4 Reasons [106] – [111]. 5 Reasons [111]. 6 Reasons [127]. See Marshall v Marshall [1999] 1 Qd R 173 at 176 (McPherson JA) and Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75 at [49] – [53] (Keane JA). 7 Reasons [128] – [129] and [200] – [201]. 8 Reasons [134]. 9 Reasons [139]. 10 Reasons [157]. 11 Reasons [156](a). 12 Reasons [156](b). -- 5 of 21 -- 6 (d) Mr Carey assessed the reasonable remuneration for the construction of the whole of the works (excluding overheads and profit) at $542,680.51.13 (e) Mr Carey assessed the reasonable remuneration for the work involved in the construction of the chapel that fell outside the scope of the carpentry licence (“unlicensed work”) at $26,071.19.14 (f) The reasonable remuneration for the licensed work, excluding overheads and margin, was $516,609.32 ($542,680.51 - $26,071.19).15 (g) Allocating one half of the figure for overheads attributable to the total cost of the whole of the works, but excluding any allowance for margin (because it was precluded in relation to unlicensed work by s 42(4)(b)), the total reasonable remuneration for the unlicensed work was $27,635.46 (excluding GST).16 (h) Hennessy Building was not entitled to recover any amount for the unlicensed work because it failed to fulfil the onus upon it of proving either the amount paid by Hennessy Building in supplying materials and labour for carrying out the building work (s 42(4)(a)) or the amount agreed as the price for carrying out the unlicensed work (s 42(4)(c)).17 (i) Adopting as reasonable the figures for overhead and margin assessed by Mr Carey, the total reasonable remuneration for the licensed work (excluding GST) was $636,462.67, resulting in an amount inclusive of GST of $700,108.20.18 (j) The net amount due by Chapel of Angels to Hennessy Building was $67,492.88 ($700,108.20 - $632,615.32).19 [12] The primary judge therefore ordered: (a) a declaration to the effect that, by the building contract dated 6 December 2012, Hennessy Building undertook to carry out building work for which it did not hold a contractor’s licence of the appropriate class under the Act; and (b) that Chapel of Angels pay Hennessy Building the amount of $85,989.86 (which included interest of $18,496.98 on the net sum owing to Hennessy Building of $67,492.88). Consequential orders including orders as to costs were also made. [13] Chapel of Angels seeks leave to appeal against the order requiring it to pay Hennessy Building $85,989.86 and against some of the consequential orders made against it. As I have indicated, the application is out of time. Hennessy Building opposes the grant of the necessary extension of time and the grant of leave to appeal. [14] The draft notice of appeal includes 23 grounds of appeal, many of which are in the nature of arguments. No ground of appeal challenges the premise of Hennessy Building’s claim that, subject to any appropriate application of s 42(4), it is entitled 13 Reasons [159]. 14 Reasons [158]. 15 Reasons [159]. 16 Reasons [161] – [162]. 17 Reasons [163] – [165]. 18 Reasons [160] and [166]. 19 Reasons [167] – [172]. -- 6 of 21 -- 7 to reasonable remuneration by way of restitution for the building work it carried out.20 The following reasons proceed upon the same premise. The proposed appeal concerns the effect of the Act and Regulation upon the quantum of the counterclaim for reasonable remuneration. At the hearing of the application Chapel of Angels abandoned some of the grounds of its proposed appeal and articulated the case it wished to present on appeal within two broad contentions. The application for an extension of time [15] The primary judge’s reasons, which include a general description of the orders required to give effect to the findings, were published on 12 November 2018. After hearing the parties about the form of orders to be made, on 11 December 2018 the primary judge made orders and published reasons concerning interest, costs, and the form of some of the orders. The period of time for applying for leave to appeal expired on 10 January 2019. On 3 May 2019 Chapel of Angels filed an application for leave to appeal and an affidavit by a director of that company, Ms Peek, setting out reasons for the delay in applying and expressions of opinion about why time should be extended. [16] Chapel of Angels communicated its intention to seek leave to appeal in a letter from its solicitors to Hennessy Building’s solicitors dated 15 April 2019, which was about three months after the expiry of the time for applying, and the application was commenced nearly four months after the expiry of the time for applying. The significance of those periods of three and four months is to be understood in the context that Chapel of Angels was in possession of the reasons which are sought to be challenged for a month before time was set running by the pronouncement of the orders. [17] Ms Peek deposed that Chapel of Angels decided not to appeal on 6 December 2018, because (to summarise the relevant effect of her evidence) she accepted advice from its lawyers not to appeal and that a better approach would be to sue former lawyers for not pleading the case properly. Ms Peek subsequently had second thoughts. She wrote to the Chief Judge of the District Court about the topic. Consistently with the advice given by Chapel of Angels’ lawyers she received the unsurprising reply that if it was maintained that the judgment was affected by error the remedy was to appeal. A few weeks after receiving that response she retained a new lawyer and put in train the process which resulted in the ultimate filing of the application. [18] Chapel of Angels was severely critical of the legal assistance given to it by various lawyers in the course of the proceedings in the District Court and also in relation to the question whether or not it should appeal against the primary judge’s decision. It argues that the quality of its legal advice was such that it should not be regarded as having made a real decision not to appeal before subsequently adopting a different view. The lawyers whose conduct is criticised have not been heard in the application to this Court. The Court could not and should not express a view upon the question whether Chapel of Angels may have some recourse to any of its former lawyers if the primary judge’s decision is more disadvantageous to it than ought to have been the 20 Neither of subsections 42(3) and (4) creates a right to recover remuneration; instead, s 42(3) is “concerned to sterilise any claim which might otherwise be made under a contract or under the common law by an unregistered builder” and s 42(4) imposes “limitations upon the right of action at common law which it preserves against the sterilising effect of s 42(3)”: Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75 at [38] – [39] (Keane JA). -- 7 of 21 -- 8 case. Chapel of Angels’ arguments supply no reason for doubting that it made a deliberate decision not to appeal. This is a significant factor against extending time. [19] In Spencer & Anor v Hutson & Ors21 Keane JA (Williams and Jerrard JJA agreeing) observed: “The prescribed time limits for appeals serve the important purpose of bringing finality to litigation. They are not lightly to be ignored. [Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207 [38]]. An applicant for an extension of the time for bringing an appeal must show that there is good reason for the court to relieve that party of the consequences of the expiration of the prescribed period for bringing an appeal. A demonstration that there is a good reason to extend time will usually involve an explanation for that party’s delay. [Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207 – 208 [38] – [41]]. … The interests of justice will favour granting an opportunity to avoid the consequences of a deliberate decision by a party to litigation only in exceptional cases. [Cf Beil v Mansell (No 1) [2006] 2 Qd R 199 at 207 [38] – [39]].” [20] In Baguley v Lifestyle Homes Mackay Pty Ltd22 Gotterson JA (McMurdo P and Douglas J agreeing) expressed agreement with the proposition that where a deliberate decision not to appeal is made an extension of time to allow such an appeal will be granted only where it is demonstrably necessary to prevent a substantial injustice. Gotterson JA observed that “the quality of the merits of the proposed appeal will be influential in deciding whether an extension of time is required to prevent a substantial injustice”. The first contention in the proposed appeal [21] Before determining whether an extension of time should be granted it is convenient to discuss the contentions Chapel of Angels would advance in the appeal it seeks leave to commence. [22] The first contention in the proposed appeal is that, contrary to the primary judge’s analysis, a consequence of the conclusion that construction of the chapel was not within the scope of the “builder – low rise” licence is that none of the building work Hennessy Building carried out was authorised by its carpentry licence or by its “builder – low rise” licence. This contention encompasses two distinct arguments. I discuss Chapel of Angels’ argument about the car park and external works, which were found to fall within Hennessy Building’s “builder – low rise” licence, in the section of these reasons addressing Chapel of Angels’ second contention; both of those arguments involve factual questions. [23] This section of my reasons addresses Chapel of Angels’ argument that a consequence of the primary judge’s conclusion that construction of the chapel was not within the scope of the “builder – low rise” licence is that none of the work Hennessy Building carried out in the course of building the chapel was authorised by its carpentry licence. This argument is submitted to involve only the proper construction of the Act and the Regulation. 21 [2007] QCA 178 at [28] – [29]. 22 [2015] QCA 75 at [14] – [17]. -- 8 of 21 -- 9 [24] The scope of work authorised by a carpentry licence is described in 16 paragraphs of item 2 in part 16 in schedule 2 of the Regulation. For example, paragraphs (1) and (2) comprehend the construction and erection of timber and steel wall framing and roof structures, and non-load bearing internal partition walls, paragraphs (3) and (4) comprehend the installation of windows and doors including framing and the erection of ceiling and subfloor framing, paragraphs (13) and (14) comprehend concreting “to simple forms” including the installation of formwork, reinforcement and concrete, and the erection and stripping of formwork, and paragraph (15) refers to “Incidental work of another class”.23 [25] Mr Carey set out in his report the full scope of the work within a carpentry licence and expressed the opinion, which the primary judge found to be correct, that most of the work done by Hennessy Building in building the chapel was within the scope of the carpentry licence. Chapel of Angels’ first contention does not challenge that view of the facts. Rather, the first contention depends upon a proposition that, upon the proper construction of the Act, a “trade contractor’s” licence is not an appropriate class of licence for work within the scope of that licence if that work is part of the building work carried out to construct or erect a building for which the trade contractor or another person does not hold the appropriate “builder contractor’s” licence. [26] Chapel of Angels argues: (a) The scheme of the Act is that work within a trade contractor’s licence that is carried out as part of the construction of an entire building must be carried out under the supervision of a builder who holds the appropriate class of licence for constructing that building. (b) To construct a building, the builder is required to hold a builder contractor’s licence. Section 42(1) of the Act, read in conjunction with the definitions of “building work” and “building”, forbids the erection or construction of a building unless the builder holds the appropriate class of licence for that building (in this case, a building requiring Type B construction). (c) The carpentry licence is not a builder contractor’s licence. It is a mere trade contractor’s licence. Such a licence does not authorise the construction of an entire building. Because Hennessy Building did not hold a builder – medium rise licence under part 5 in schedule 2 of the Regulation or a “builder – open” licence under part 6 in schedule 2 of the Regulation (these being the only licences authorising a builder to build a class 9b building including Type B construction, such as the chapel), Hennessy Building did not hold a licence of the appropriate class to carry out any building work on the chapel building. (d) It is “not possible to apportion lawful work from unlawful work, because in the context of erecting an entire building where there is … no principal contractor … the work is either entirely lawful or it is entirely unlawful”. 23 Section 8 of the Regulation provides, in relation to “incidental work of another class”, that a licensee may carry out or engage another person to carry out building work with a total value of $3,300 or less that is within the scope of work under a licence class other than the relevant class applicable to the licensee, is incidental to the building work being carried out under the relevant class, and is carried out by the licensee or a licensee who holds a licence to carry out the work – other than in relation to work for which an occupational or fire protection licence is required, which must be carried out by the holder of a licence to carry out such work. -- 9 of 21 -- 10 [27] Upon the premise that Chapel of Angels may be permitted to advance those arguments on appeal, Hennessy Building argues (in addition to an argument mentioned under the next heading): (a) Subsection 42(1) prevents an unlicensed contractor from bringing an action upon the contract against the other contracting party. (b) Subsection 42(3) applies s 42(4) only to qualify any non-contractual entitlement of a person to reasonable remuneration for the carrying out of building work without the appropriate class of contractor’s license for that building work. (c) Hennessy Building is in the different category of a person with no enforceable contractual entitlement to recover remuneration for the building work it performed who carried out building work within the scope of a contractor’s licence. (d) There is no legislative policy of depriving a contractor of a non-contractual remedy for reasonable remuneration for carrying out building work that it was licensed to carry out. Should Chapel of Angels be permitted to argue the first contention on appeal? [28] Hennessy Building objects to Chapel of Angels being granted leave to argue the first contention on appeal, on the grounds that it did not argue it at the trial and that, if such an argument had been made, Hennessy Building might have adduced additional evidence at the trial. [29] Chapel of Angels did submit at the trial that the whole of Hennessy Building’s claim was governed by s 42(4) but it did not support that submission by its present argument. Contrary to Chapel of Angels’ arguments in this Court,24 it is not common ground that Hennessy Building did not have an appropriate licence to carry out building work “in connection with” a Type B structure. The primary judge’s reasons record that Hennessy Building accepted Chapel of Angels’ argument that the “builder – low rise” licence permitted it to construct a class 9b building but not including Type A or Type B construction.25 The primary judge did not refer to any submission by Chapel of Angels or any concession by Hennessy Building that, if (as Chapel of Angels contended and the primary judge found) the chapel involved Type B construction, none of Hennessy Building’s building work on the chapel fell within its “builder – low rise” licence or its carpentry licence. Chapel of Angels’ present argument is a departure from the way it conducted its claim in the District Court. [30] Hennessy Building submits that, if Chapel of Angels’ present argument had been raised in the District Court, one of Hennessy Building’s arguments in response would have required a factual investigation bearing upon the scope of its “builder – low rise” licence. It argues that the concluding phrase in paragraph (2) of item 2 in part 4 of schedule 2 of the Regulation (see [6] of these reasons) withdraws from the scope of a “builder – low rise” licence only so much of the building work as is Type A or Type B construction. At the hearing of the application in this Court counsel for Hennessy Building handed up an extract from a 2016 edition of the Building Code of Australia which was submitted to identify particular construction elements required for Type B construction. A very broad summary of the apparent effect of the document is that it requires identified elements to be constructed in ways that will comply with fire 24 Transcript 22 November 2019 at 1-4. 25 Reasons [82] – [83]. -- 10 of 21 -- 11 resistance level requirements and will limit consequential effects of fire upon the building’s structural integrity. [31] The effect of Hennessy Building’s argument is that the scope of its “builder – low rise” licence comprehended all of the work of constructing the chapel apart from the work described in the Building Code of Australia as requiring Type B construction. The location of the concluding phrase at the end of the sentence in paragraph (2) of item 2 in part 4 of schedule 2 of the Regulation seems more consistent with it excluding from a “builder – low rise” licence the construction of a class 9 building for which Type B construction is required. That view also seems to accord with parts of the extract from the Building Code of Australia, particularly the reference in cl 1.1 to the “minimum Type of fire-resisting construction of a building” and the reference in cl 4.1 to construction requirements in “a building required to be of Type B construction”. The same construction seems to be more consistent with the different categories of builder contractor’s licences under the Act, given that a particular level of building expertise is presumably required for the identification of the elements of a building requiring Type A or Type B construction and to fulfil those requirements. [32] Upon what seems likely to be the correct construction of the Regulation, building the chapel was not within the scope of Hennessy Building’s “builder – low rise” licence because the chapel was a class 9 building that included Type B construction. I think it unlikely that Hennessy Building’s different construction of the Regulation would be supported by evidence not adduced at the trial, but there remains a possibility that such evidence, including the relevant edition of the Building Code of Australia and expert opinion evidence, might do so. That is a factor opposed to a grant of leave to appeal upon the point. I will return to that issue after discussing the merits of Chapel of Angels’ first contention upon the assumption that its construction of this part of the “builder – low rise” licence is correct. Consideration [33] I will refer first to some terms defined in the Act. The first of the ten paragraphs in the definition of “building work” in schedule 2 of the Act is “(a) the erection or construction of a building”. The schedule provides only an inclusive definition of “building”; it includes “any fixed structure”. The word “structure” is not defined. Stated examples of a fixed structure comprehend a permanent fence, a water tank connected to the stormwater system for a building, and both an inground swimming pool and an aboveground pool fixed to the ground. The examples suggest a relatively broad meaning of “fixed structure” and therefore of paragraph (a) of the definition; for example, the construction of part of what is to become an entire building may itself amount to a “building”. One of the other paragraphs in the definition of “building work”, paragraph (e), refers to “any site work (including the construction of retaining structures) related to work of a kind referred to above”. The remaining paragraphs of the definition are not relevant here.26 The definition of “building work” also provides that it “does not include work of a kind excluded by regulation from the ambit of this definition.” Numerous exclusions are specified in s 5 of the Regulation. [34] No paragraph of the definition of “building work” specifically describes trade work of a kind that is typically involved in the construction of a domestic or commercial 26 They refer, for example, to alterations or repairs of a building, provision of lighting and other services, preparation of plans or specifications, contract administration, and completed building inspections. -- 11 of 21 -- 12 building such as, for example, brick laying and block laying, carpentry, concreting, plumbing, glazing, joinery, guttering, and painting and decorating (each of which is the subject of a trade contractor’s licence). Given that s 30 of the Act authorises a regulation providing for the issue of licences for carrying out “all classes of building work” or “1 or more classes specified in the licence”, work described in a trade contractor’s licence under a regulation made pursuant to s 30 that forms part of the erection or construction of a building must itself amount to “building work”. It may do so because it of itself creates a building, or because it merely contributes to the construction of a building (and in either case is thus within paragraph (a) of the definition of “building work”), or because it is “(e) any site work (including the construction of retaining structures) related to work of a kind referred to above”, or because it falls within both paragraphs.27 [35] It is impossible to be dogmatic about the meaning to be given to the assembly of the various different concepts within the definition of “building work”. In some cases work under a trade contractor’s licence (including a carpentry licence) will of itself produce a building as defined and will be “building work” under paragraph (a) merely for that reason. In my view paragraph (a) also comprehends work falling within a trade contractor’s licence that, only in combination with other building work, produces a building. Paragraph (e) extends the definition of building work to work upon the same site that does not create or contribute to the creation of a building described in paragraph (a) but is sufficiently closely related to the work of constructing that building as to justify treating it as “building work”. Upon this view, each of Hennessy Building’s carpentry licence and its “builder – low rise” licence authorised “building work” within paragraph (a) of the definition. [36] The term “carry out” is defined to mean any of “carry out the work personally”, “directly or indirectly cause the work to be carried out”, and “provide building work services28 for the work”. In this case Hennessy Building carried out the building work personally. [37] Hennessy Building’s argument derives support from a decision cited by the primary judge, Dart Holdings Pty Ltd t/as A Dart & Co v Total Concept Group Pty Ltd.29 One issue in that case concerned the entitlement to payment of a subcontractor who supplied and installed items largely made of glass in a building being constructed by others. The subcontractor held a “building – low rise” licence and a carpentry licence but reliance was placed only upon the carpentry licence. McMurdo J (as McMurdo JA then was) observed that the limitation in s 42(4) upon the amount which can be claimed “applies only to the building work for which the contractor did not have the appropriate licence” and “would not affect the defendant’s entitlement to be paid, upon a restitutionary basis, for the work which it lawfully performed under its licence.” [38] As Chapel of Angels acknowledged in the course of argument, no provision of the Act or the Regulation in terms excludes from the scope of work within a trade contractor’s licence building work that is not within the scope of a builder contractor’s 27 See Cook’s Constructions Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QSC 179 at [342] (Martin J). 28 “Building work services” means one or more of administration, advisory, management, or supervisory services. It would follow from the primary judge’s conclusions that Hennessy Building was not entitled to recover remuneration unregulated by s 42(4) for any such service authorised only by its “builder – low rise” licence. That does not bear upon the present issue. 29 [2012] QSC 158 at [40]. -- 12 of 21 -- 13 licence held by a contractor responsible for constructing the entire building. That is not conclusive. I accept that there is a hierarchy of contractor’s licences, in the sense that there are numerous trade contractor’s licences that are largely restricted to work within one identified trade (there are areas of overlap between licences) and there is a much smaller number of builder contractor’s licences which authorise the construction of entire buildings of particular classes or kinds. In this context, it is distinctly arguable that the scheme of the Regulation made under the Act is such that no trade contractor’s licence authorises the entire construction of a building of a class or kind described in a builder contractor’s licence. It is not Chapel of Angels’ case, however, that the work found by the primary judge to be within the carpentry licence amounted to the entire construction of such a building. [39] Chapel of Angels’ argument is different and broader. It is that work of the kind described in Hennessy Building’s carpentry licence that formed part of the construction of such a building was not within the scope of the carpentry licence because neither it nor a different person who supervised that part of the work held such a builder contractor’s licence. That is neither expressed nor implied in the Act or the Regulation. [40] It is convenient to discuss Chapel of Angels’ argument using terms it used, such as “trade contractor” and “builder contractor”, but I do not accept that those are relevant statutory terms in this context. The Act contains a definition of “licensed builder” (“a person who is a licensed builder under the regulations”) and s 42(12) of the Act defines “licensed trade contractor” to mean a licensed contractor other than a licensed builder. Furthermore, s 6 of the Regulation defines a “licensed builder” (a person who is the holder of a “builder contractor’s licence”) and schedule 3 of the Regulation defines “trade contractor’s licence” (a licence other than a builder contractor’s licence). Section 10(1)(a) of the Act requires a board established under the Act to include a licensed builder and a licensed contractor other than a licensed builder. Section 42(8A) provides that a consumer who engages one or more trade contractors to carry out building work does not carry out building work if the consumer does not provide building works services. (An example of such a case expressed in the provision is that of a consumer engaging a licensed builder to build and carry out all building work services for a new residence.) Neither those provisions nor any other provisions of the Act or Regulation address the consequences of a departure from the licensing scheme. To address that issue it is necessary to ascertain the meaning conveyed by the statutory text in its context. [41] The focus must be upon s 42, since it contains the only provisions that address the impact upon a contractor’s entitlement to remuneration of a departure from the licensing scheme. [42] Before October 1999 s 42 of the Act did not include the introductory phrase in s 42(3) (“Subject to subsection 4,”) or any provision corresponding with s 42(4). Those parts of s 42 were added by an amendment that took effect on 1 October 1999.30 In relation to the original form of s 42, in Marshall v Marshall31 McPherson JA referred to the “principal target of the statutory prohibition” as being “[s]ubstandard workmanship and materials”, one method of achieving that object being preventing “incompetent and unlicensed builders from doing building work, and penalising them if they do so”;32 McPherson JA also observed (in relation to the statutory insurance scheme for 30 Queensland Building Services Authority Amendment Act 1999 (Qld), s 21 and SL No 226 of 1999, s 1. 31 [1999] 1 Qd R 173 at 176 – 178. 32 I have added the emphasis here and in subsequent paragraphs, except where the contrary is indicated. -- 13 of 21 -- 14 residential construction work) that it would “go far to diminish the funding available for the statutory insurance scheme if unlicensed builders were able to receive and retain money for doing residential construction work without complying with these provisions [requiring a building contractor to pay an insurance premium] and with the licensing requirements of the Act”. [43] In Sutton v Zullo Enterprises Pty Ltd33 this Court approved the reasons given by McPherson JA in Marshall v Marshall34 for the conclusion in relation to s 42(3) in the form it was in before the 1999 amendments “that an unlicensed builder is by s 42(3) not entitled to receive or retain money paid for doing building work”. [44] In Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd),35 Keane JA discussed the purpose of the 1999 amendments. As Keane JA observed, under the original form of s 42, s 42(3) disentitled “an unlicensed builder from receiving or retaining any payment on any basis for any building work performed by it” (emphasis in original). The purpose of the 1999 amendments was explained in the Explanatory Notes and the Minster’s second reading speech. Each refers to Sutton v Zullo Enterprises Pty Ltd. The Explanatory Notes state that the decision “potentially allows considerable injustice, such as deliberate recruiting of subcontractors from interstate and legally escaping from any obligation to pay for work performed”, and that: “Unlicensed contracting will, of course, remain an offence committed by the contractor, but the principle that a builder or owner should not be able to enrich themselves through signing on unlicensed contractors is enshrined in this clause. This clause amends s 42(3) and inserts a new subsection 42(4) to provide an unlicensed contractor with a limited statutory right to recover money which would otherwise be unavailable because of the Zullo decision. The new provisions will allow an unlicensed contractor to claim reasonable recovery of moneys actually expended for the supply of materials and labour, other than the contractor’s own labour and profit. … The new provision in s 42(4)(iii) also prevents an unlicensed contractor unreasonably incurring costs and claiming for recovery under this provision. …” [45] Similarly, the Minister stated in the second reading speech that the decision in Zullo Enterprises “opens the door for unjust enrichment of unscrupulous developers and builders, potentially encouraging them to engage unlicensed contractors” and that: “The Bill rectifies this situation by allowing unlicensed contractors to recover any moneys that they have reasonably spent while performing building work. But unlicensed contractors cannot recover any profit or receive any more than the contract price specified in the purported contract. They will also be penalised for the offence of operating without a licence.” 33 [2000] 2 Qd R 196 at 204 [8], 206 [16]. 34 [1999] 1 Qd R 173 at 176 – 178. 35 [2009] QCA 75 at [54]. -- 14 of 21 -- 15 [46] Keane JA concluded that the extrinsic material showed that the 1999 amendments “were concerned to limit the scope of the operation of [s 42(1) and s 42(3)] by reference to a limited right to reasonable remuneration in an unlicensed builder”, the mischief at which the 1999 amendments were directed being “the denial of all remuneration to an unlicensed builder”.36 [47] Those matters do not support Chapel of Angels’ argument. They are consistent with Hennessey Building’s argument, it being inapt to describe as “unlicensed” a person who carries out building work whilst holding a contractor’s licence that comprehends part of that work. [48] More importantly, the statutory text does not attribute the significance to the distinction between a builder contractor’s licence and a trade contractor’s licence which is required by Chapel of Angels’ first contention. It is apparent from the discussion in [33] – [35] that s 42(1) cannot be read in conjunction with the definitions of “building work” and “building” as a prohibition upon any “building work” done in connection with the erection or construction of any “building” unless the person carrying out that work holds a builder contractor’s licence of the class appropriate for the construction of the completed building. The holding by a person of a builder contractor’s licence is not a criterion of the operation of s 42(1). Nor does such a licence prohibit anything. The relevant result of a person holding that or any other class of contractor’s licence is instead that the person is unaffected by the prohibitions in s 42(1) in relation to work described in the licence. [49] It is necessary to bear in mind that s 42(1) contains two “separate and distinct prohibitions”.37 In relation to the second prohibition, s 42(1) itself prevents a person who undertook by a contract to carry out building work from enforcing the contract if that person did not hold the appropriate class of licence for any inseverable part of that building work.38 In relation to the present issue though, the relevant part of s 42(1) is only the prohibition that “a person must not carry out … building work unless that person holds a contractor’s licence of the appropriate class under this Act”. Subsections 42(3) and 42(4) are concerned only with the consequences of a contravention of that prohibition and, importantly, “it is the [building] work actually performed which is relevant for the purposes of s 42(3) and s 42(4)”.39 It is also necessary to bear in mind that the relevant prohibition in s 42(1) is contravened – and therefore s 42(3) and s 42(4) operate – only where a person carries out building work without holding “a” contractor’s licence of the appropriate class for that building work. [50] Where a person who holds more than one contractor’s licence carried out building work, a conclusion that the building work did not fall within the scope of one of the contractor’s licences says nothing relevant about whether the person contravened the prohibition upon carrying out building work without a contractor’s licence of the appropriate class under the Act. In order to prove a contravention of that prohibition it is necessary to identify the building work allegedly carried out without a licence of the appropriate class and to prove that none of the licences held by the contractor was 36 [2009] QCA 75 at [57]. 37 Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196 at 202 [3] (per McPherson JA, with whose reasons Jones J agreed). 38 Sutton v Zullo Enterprises Pty Ltd [2000] 2 Qd R 196 at 202 – 203 [4] (McPherson JA); Dart Holdings Pty Ltd t/as A Dart & Co v Total Concept Group Pty Ltd [2012] QSC 158 at [39] (McMurdo J). 39 Dart Holdings Pty Ltd t/as A Dart & Co v Total Concept Group Pty Ltd [2012] QSC 158 at [15] (McMurdo J). -- 15 of 21 -- 16 of an appropriate class for that work. If one of a number of contractor’s licences authorised some of the building work carried out by the contractor, the only conduct of the contractor in carrying out building work that could be proved to contravene the prohibition is the contractor’s conduct in carrying out building work that does not fall within the scope of that licence. [51] Chapel of Angels’ argument that it is not possible to “apportion lawful work from unlawful work” is no more than an assertion. Its argument did not identify any provision of the Act or Regulation that supports it. The contrary view is suggested by various matters in addition to those mentioned in the preceding paragraph: the Act allows for different classes of “contractor’s licences”; that term comprehends builder contractor’s licences authorising the construction of buildings and trade contractor’s licences authorising various kinds of trade work commonly carried out as part of the construction of buildings; the Act makes no distinction relevant to the present issue between a builder contractor’s licence and a trade contractor’s licence; and the target of the original form of s 42(1) and the limitations upon the right to reasonable remuneration in s 42(4) introduced by the 1999 amendments was an “unlicensed” contractor. [52] Because Hennessy Building held two contractor’s licences, the primary judge’s conclusion that one of those licences, the “builder – low rise” licence, did not authorise it to build the chapel is insufficient to establish that Hennessy Building contravened the prohibition in s 42(1) upon carrying out building work when it did not hold a contractor’s licence of the appropriate class. It is necessary also to examine Hennessy Building’s carpentry licence. It was a contractor’s licence of the appropriate class for the part of the building work described within the scope of that licence it carried out in building the chapel. By carrying out that part of the work Hennessy Building did not contravene the prohibition in s 42(1) against carrying out “building work” without a licence of the appropriate class, regardless of whether or not that part of the work, or the balance of the work required to complete the construction of the chapel, was within the scope of its “builder – low rise” licence. [53] Such a construction is not an encouragement to contractors to carry out building work without a licence or licences that authorise all of that work. In this kind of case the building contract is unenforceable by the contractor in relation to the unlicensed work. Where (as in this case and as is commonly the case) the promise to carry out the unlicensed work is not severable from the balance of the contract, the contractor is unable to enforce the contract at all. Any non-contractual right the contractor may have to recover reasonable remuneration for the unlicensed work is restricted by s 42(4) and the contractor is exposed to prosecution for an offence for contravening at least one of the two prohibitions in s 42(1). From the consumer’s perspective the results of this construction also do not seem obviously unreasonable. The consumer may be found liable to pay reasonable remuneration not limited in accordance with s 42(4) only in relation to the benefit the consumer has obtained as a result of the contractor carrying out building work for which it held a licence of the appropriate class, and the consumer will benefit from the limits in s 42(4) in respect of any work for which the contractor did not hold a licence of the appropriate class. [54] The construction I prefer does not preclude account being taken of any real detriment suffered by a consumer as a result of a contractor carrying out building work in a case of this kind. Chapel of Angels did not argue that it suffered any such detriment or seek to have any such detriment taken into account in the valuation of Hennessy Building’s claim, but there may be a real detriment in some cases. An example may -- 16 of 21 -- 17 be given by reference to s 47 of the Act, which was mentioned in the course of argument. It applies in a case in which “building work is carried out on land by a person who is not licensed to carry out that building work” and “the land is offered for sale within 6 years after completion of the building work”. Section 47(1) provides that in such a case “the vendor must, before the contract of sale is signed by the purchaser, give the prospective purchaser a notice containing details of the building work and a warning in the form required by regulation”. Section 47(2) provides that if such notice is not given, “the vendor will be taken to have given the purchaser a contractual warranty (which operates to the exclusion of any inconsistent provision of the contract of sale) that the building work was properly carried out.” It is not difficult to accept that the market value of land encumbered by a building part of which was constructed in the absence of a required licence might be adversely affected by the operation of s 47. A consumer also may suffer a real detriment merely because, for example, it is likely to be known to potential purchasers that all or some building work was done on the consumer’s land without a necessary licence. [55] That detriment of that kind may be taken into account in the valuation of a restitutionary claim by the contractor against the consumer is suggested by a passage in Deane J’s reasons in Pavey & Matthews Pty Ltd v Paul:40 “The tendency in some past cases to see the rationale of the right to recover remuneration for a benefit provided and accepted under an unenforceable contract as contract or promise rather than restitution has tended to distract attention from the importance of identifying the basis upon which the quantum of the amount recoverable should be ascertained. What the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or ‘enrichment’ actually or constructively accepted. Ordinarily, that will correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied). In some categories of case, however, it would be to affront rather than satisfy the requirements of good conscience and justice which inspire the concept or principle of restitution or unjust enrichment to determine what constitutes fair and just compensation for a benefit accepted by reference only to what would represent a fair remuneration for the work involved or a fair market value of materials supplied. One such category of case is that in which unsolicited but subsequently accepted work is done in improving property in circumstances where remuneration for the unsolicited work calculated at what was a reasonable rate would far exceed the enhanced value of the property. More relevant for present purposes is the special category of case where restitution is sought by one party for work which he has executed under a contract which has become unenforceable by reason of his failure to comply with the requirements of a statutory provision which was enacted to protect the other party. In that category of case, it would be contrary to the general notions of restitution or unjust enrichment if what constituted fair and just compensation for the benefit accepted by the other party were to be ascertained without regard to any identifiable real 40 (1987) 162 CLR 221 at 263 – 264. -- 17 of 21 -- 18 detriment sustained by that other party by reason of the failure of the first party to ensure that the requirements of the statutory provision were satisfied.” [56] The passage I have emphasised is consistent with academic and judicial statements to the effect that in analogous circumstances the measure of the restitution is the value of the benefit to the defendant, which may but will not necessarily be the same as the reasonable cost incurred by the plaintiff in supplying the benefit.41 [57] My conclusion is that the primary judge did not misconstrue the Act in the way for which Chapel of Angels contends in holding that s 42(4) did not apply to Hennessy Building’s non-contractual claim for reasonable remuneration for the building work within the scope of its carpentry licence it carried out in the course of constructing the chapel. The second contention in the proposed appeal [58] Chapel of Angels’ second contention is that the primary judge erred in quantifying Hennessy Building’s claim for the licensed work by failing to compare each component of that claim with the scope of work authorised by Hennessy Building’s carpentry licence and instead simply accepting Mr Carey’s expert report as concluding that issue in favour of Hennessy Building. Chapel of Angels also seeks to agitate arguments that Mr Carey’s report contains various arithmetical errors, inaccurate descriptions of work, misstatements of the costs of some work, references to invoices when there were only estimates, the inclusion as extras or provisional cost adjustments of the cost of work which was within an original quote, costs for items of work admitted to be not claimable, and inappropriate allocation as carpentry of work that wholly or partly fell outside the carpentry licence and within another class of licence. [59] Mr Carey’s report: (a) recites that he had been appointed “as an independent and impartial quantity surveying expert to assist the Court in determining a ‘fair and reasonable valuation’ of matters requested on [the building contract]”; (b) recites his relevant experience, including 40 years in the construction industry including as the owner of a consulting firm of professional quantity surveyors for 25 years, owning of his own construction company for some years, and his board positions in large construction companies; (c) recites his qualifications relevant to his report; (d) describes the documents he considered, which include contract drawings and quotations and invoices provided by Hennessy Building; (e) refers to him having “inspected the site, measured where appropriate off drawings, inspected quotations and invoices”; 41 See J Carter, K Mason and G J Tolhurst, Mason & Carter’s Restitution Law in Australia, 3 rd ed (2016) at [137], [1415] and [1425]; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 227 (Mason and Wilson JJ), 263 (Deane J); Mann v Paterson Constructions Pty Ltd (2019) 93 ALJR 1164 at [92] – [95], [100] (Gageler J), [190], [201] – [204] (Nettle, Gordon and Edelman JJ); Maxcon Constructions Pty Ltd v Vadasz [2016] SASCFC 119 at [84] (Peek, Blue and Lovell JJ); Peet Ltd & Ors v Richmond (2011) 33 VR 465 at 485 [105] (Nettle JA, Neave JA and Rudd AJA agreeing); and Sopov v Kane Constructions Pty Ltd (No 2) (2009) 24 VR 510 at 518 [25] (Maxwell P, Kellam JA and Whelan AJA). -- 18 of 21 -- 19 (f) sets out assessments and calculations in which he describes the relevant work, often by reference to invoices or other documents; and (g) expresses opinions about the appropriate characterisation of items of such work which support the primary judge’s findings summarised in [11] of these reasons. [60] The primary judge observed: (a) The calculation of the amount to which Hennessy Building was entitled was dealt with in some detail in Mr Carey’s report. (b) Chapel of Angels did not file any expert report in reply and led no evidence about the correct restitutionary measure in respect of the work undertaken by Hennessy Building.42 (c) Chapel of Angels complained at the trial about reliance upon Mr Carey’s report, but it was not unfair for Hennessy Building to rely upon Mr Carey’s report in circumstances in which: (i) that report had been in Chapel of Angels’ possession for at least five months before commencement of the trial; (ii) over a month before the trial commenced Hennessy Building gave notice of its reliance upon the report as providing particulars of the sum claimed if it was found that it had carried out unlicensed building work; (iii) no objection was taken to the report at the trial, and it was cross examined upon extensively.43 [61] Chapel of Angels did not deliver an expert report or plead any of the points it now seeks to agitate in relation to Mr Carey’s report in the District Court. At the trial it did not adduce any evidence in support of them, put them to Mr Carey in cross examination, or make any submissions in support of them to the primary judge. If they had been raised Hennessy Building might have adduced additional evidence and addressed additional arguments to seek to meet the points. The failure to raise these points at trial occurred in the context of a very long history of the proceeding in the District Court and concerted attempts by the primary judge to ensure that both parties’ cases were properly prepared for trial. The proceeding in the District Court occupied about five years, commencing on 20 October 2014. After the applicant had delivered three or four iterations of its claim and statement of claim, on 8 March 2018, the matter was listed for a 10 day trial commencing on 10 September 2018. Accordingly, Chapel of Angels had six months’ notice of the date when the trial would commence. As the primary judge observed, Mr Carey’s expert report was served on the applicant on 6 April 2018, more than five months before the trial was appointed to commence. On four occasions after the matter was listed for trial the primary judge made directions about steps to be taken in advance of the trial, including directions aimed at narrowing issues and addressing the evidence to be given at trial. [62] In these circumstances, I do not accept the proposition underlying Chapel of Angels’ second contention that the primary judge was obliged to elaborate in greater detail upon his reasons for accepting Mr Carey’s expert opinions. Chapel of Angels should not be permitted to make the wholesale challenge to Mr Carey’s report it now seeks 42 Reasons [140]. 43 Reasons [157]. -- 19 of 21 -- 20 to make for the first time on appeal. Whether or not there may be merit in any of the new arguments is not the real issue; the proper time for investigating the merits was at the trial, not in an appeal. [63] In Water Board v Moustakas44 Mason CJ and Wilson, Brennan and Dawson JJ endorsed previous statements by the High Court “that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.” As was submitted by counsel for Hennessy Building, if the case now advocated on behalf of Chapel of Angels had been properly raised in the District Court, Hennessy Building might have responded to the case by adducing additional evidence and making additional submissions. An obvious example of that is that if Chapel of Angels’ had properly pleaded, or its counsel had put to Mr Carey, points of the kind now sought to be made on appeal Mr Carey might have been able to explain his opinions upon the points or Hennessy Building might have been able to meet those points in other ways. [64] Chapel of Angels also seeks to agitate the aspect of its first contention which I mentioned in [22] of these reasons. It seeks to argue on appeal that a consequence of the primary judge’s conclusion that Hennessy Building’s “builder – low rise” licence did not authorise it to build the chapel is that the same licence did not authorise it to carry out work on the carpark or external works. The primary judge recorded that no submission was made to the contrary of his Honour’s finding that the carpark and external works appeared to be within Hennessy Building’s “builder – low rise” licence.45 If the submission now sought to be made on appeal had been made at trial, Hennessy Building might have adduced additional evidence upon the questions whether that work or part of it was within the described scope of the “builder – low rise” licence and, if any part of it was not within the licence, whether it fell outside the definition of “building work” or within one of the exclusions from “building work” in s 5 of the Regulation. [65] To grant leave to appeal to enable Chapel of Angels to raise these new arguments would be to allow it to treat the trial as “little more than a preliminary skirmish”. That should not be permitted; it is “fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”.46 Disposition and orders [66] There being no sensible prospect that the application for leave to appeal would be granted to permit Chapel of Angels to agitate any of those new arguments on appeal, it would be futile to grant the extension of time necessary for that application to proceed. [67] In addition, if Hennessy Building’s construction of the Regulation discussed in [28] – [32] of these reasons is correct, that would require the matter to be remitted for a further hearing. For that reason, and because of my conclusion that Chapel of Angels’ first contention about the construction of s 42 of the Act is incorrect in any event, I consider it inappropriate to grant leave to appeal upon that issue. That being so no point is to be served by granting the requested extension of time. [68] I would refuse the application for an extension of time within which to apply for leave to appeal, with costs. 44 (1988) 180 CLR 491 at 497. 45 Reasons [122], [126], [156](a). 46 Coulton v Holcombe (1986) 162 CLR 1 at 7. -- 20 of 21 -- 21 [69] PHILIPPIDES JA: I agree with the order proposed by Fraser JA for the reasons given by his Honour. [70] McMURDO JA: I agree with Fraser JA. -- 21 of 21 --