Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L)

(2009) 254 ALR 661; [2009] QCA 75

Queensland Court of Appeal

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Interrogate

Catchwords

1. Restitution
2. › Money paid under mistake
3. › Recovery of money paid to unlicensed builder
4. › Statutory disentitlement to payment
5. › Whether payer's restitutionary claim maintainable without disproving builder's entitlement to reasonable remuneration
6. › Queensland Building Services Authority Act 1991 (Qld), ss 42(3), 42(4)
1. Restitution
2. › Money paid under mistake
3. › Onus of proof
4. › Whether onus on payer to disprove payee's entitlement or on payee to prove entitlement
5. › Interaction between statutory disentitlement and common law restitutionary principles
6. › Queensland Building Services Authority Act 1991 (Qld), ss 42(3), 42(4)
1. Restitution
2. › General principles
3. › Restitutio in integrum
4. › Whether requirement of counter-restitution applies to claim for recovery of money paid by mistake
5. › Whether statutory scheme excludes requirement of restitutio in integrum
1. Statutes
2. › Construction
3. › Building licensing legislation
4. › Operation of disentitling provision
5. › Relationship between s 42(3) and s 42(4)
6. › Legislative history and extrinsic materials
7. › Queensland Building Services Authority Act 1991 (Qld), ss 42(1), 42(3), 42(4)

Quick Take

Under s 42(3) and s 42(4) of the Queensland Building Services Authority Act 1991, the onus of proving a claim for reasonable remuneration lies on the unlicensed builder, not on the party seeking to recover payments. Section 42(4) preserves a common law right to remuneration subject to statutory conditions rather than creating a new statutory right. A payer's restitutionary claim for recovery of money paid to an unlicensed builder does not require the payer to make restitutio in integrum or counter-restitution for the value of the builder's work. An unlicensed builder who fails to adduce evidence capable of proving a claim for reasonable remuneration in conformity with s 42(4) will be required to disgorge the full amount of payments received for building work.