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Principal liable to pay compensation

in the course of and for the purpose of...

Shao Wen Zheng v Guo Yong Yang & Ors [ULIS] [2008] NSWWCCPD 144. Roche DP. 16.12.08.

If I am wrong on this issue and it is appropriate to infer that the work performed by Mr Yang was performed under a contract with the Third Respondents, section 20 is not satisfied by the mere existence of such a contract.

The contract must be one entered 'in the course of and for the purpose of' the principal's trade or business for the execution by or under the contractor (Mr Yang) of the whole or part of 'any work undertaken by the principal'.

The evidence establishes that, as at 25 April 2005, Ms E Lu and Mrs Chung owned 23 Berrille Road as joint tenants and that they rented that property, or parts of it, to various people.[82]

"The evidence does not, however, establish that they conducted a trade or business, or that the work being performed by Mr Yang was part of any work or business undertaken by them. I note that the expression 'work undertaken by the principal' is not limited to work that the principal has contracted to do for someone else, but also covers any work that is part and parcel of the business undertaking of the principal: per Dixon CJ in Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42 at 50.

The mere fact that a person owns and rents a residential property does not establish that he or she conducts the business of a boarding house.

It is not known what business, if any, Ms E Lu and Mrs Chung conducted. It is possible that they conducted the business of a boarding house, but it is equally possible that they merely owned 23 Berrille Road as a negatively geared investment property and that it required repairs. I am therefore not satisfied that, if there was a contract between Mr Yang and the Third Respondents, section 20 applies. The Arbitrator erred in finding to the contrary."

A: Mr R Taylor, inst Keddies. R: Mr A Baker, inst Sparke Helmore.




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