Marshall & Anor v Marshall

[1997] QCA 382

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Restitution
2. › Money paid under mistake
3. › Mistake of law
4. › Payment to unlicensed builder
5. › Whether payer entitled to recover money paid under mistaken belief that recipient was legally entitled to payment
6. › Queensland Building Services Authority Act 1991 (Qld), s 42(3)
1. Building and Construction Law
2. › Licensing
3. › Unlicensed builder
4. › Entitlement to monetary consideration
5. › Whether unlicensed builder entitled to retain payments received
6. › Whether s 42(3) prevents retention of money voluntarily paid
7. › Queensland Building Services Authority Act 1991 (Qld), ss 42(1), 42(3)
1. Building and Construction Law
2. › Licensing
3. › Partnership exception
4. › Whether unlicensed person carried out work 'in partnership with' licensed builder
5. › Meaning of 'partnership' in s 42(6)
6. › Whether joint venture arrangement constitutes partnership
7. › Queensland Building Services Authority Act 1991 (Qld), s 42(6)
1. Restitution
2. › Quantum meruit
3. › Adjustment for value of work done
4. › Whether quantum meruit deduction appropriate where unlicensed builder's payments recoverable as money paid under mistake of law

Quick Take

Money paid to an unlicensed builder is recoverable as money paid under a mistake of law where the payer mistakenly believed the builder was legally entitled to payment, subject to a quantum meruit deduction for the true value of work done. The term 'partnership' in s 42(6) of the Queensland Building Services Authority Act 1991 bears its well-established legal meaning and does not extend to loose joint venture arrangements. The appropriate method of calculating recovery is to deduct from the amount paid the true value of work done (being the value of work if done properly, less the cost of rectifying defects).