Nichols v Earth Spirit Home Pty Ltd

[2015] QCA 219

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Building contracts
3. › Legality
4. › Oral building contract
5. › Whether wholly oral building contract enforceable where statute makes failure to reduce to writing an offence
6. › Whether statute expressly or impliedly prohibits oral contract
7. › Whether public policy renders oral contract unenforceable
8. › Queensland Building and Construction Commission Act 1991 (Qld), ss 67E, 67G
1. Contract
2. › Illegality
3. › Statutory prohibition
4. › Whether statute impliedly prohibits making or performance of contract
5. › Distinction between express prohibition, implied prohibition, and public policy
6. › Significance of absence of statutory consequences beyond criminal penalty
1. Contract
2. › Illegality
3. › Public policy
4. › Whether public policy renders contract unenforceable at suit of party who committed offence
5. › Relevance of circumstances including degree of transgression and relationship between prohibited conduct and contract

Quick Take

A wholly oral building contract is enforceable notwithstanding that the builder commits an offence under s 67G of the Queensland Building and Construction Commission Act 1991 (Qld) by failing to reduce the contract to writing. Section 67E(1) expressly preserves such contracts from being void or voidable, and s 67E(2) is directed to inconsistencies in the content of building contracts, not the form in which they are evidenced. Public policy does not require unenforceability where the oral arrangement was entered into at the other party's request and there was no deliberate circumvention of the statutory scheme.