A and P Constructions Pty Ltd v Central Electronics and Anor

[1999] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B62 of 1997

B e t w e n -

A & P CONSTRUCTIONS PTY LTD (IN LIQUIDATION)

Applicant

and

CENTRAL ELECTRONICS (CONTRACTING) PTY LTD

First Respondent

QUEENSLAND WINDOWS PTY LTD

Second Respondent

Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 2.48 PM

Copyright in the High Court of Australia

GAUDRON ACJ:   In this matter the parties are content to rely on their written submissions.

The application seeks to raise the question whether the unexpended portion of moneys paid pursuant to a bank guarantee in lieu of retention moneys are moneys payable to a builder under a building contract for the purposes of s 5(1) of the Subcontractors’ Charges Act 1974 (Q). That is a question which, if it were the only issue in the case, might attract the grant of special leave. However, the sum which is in issue is the balance of a fund constituted by unpaid contract moneys, funds paid pursuant to a bank guarantee in lieu of a security deposit as well as moneys paid pursuant to the retention fund guarantee. The mixed nature of the fund in question appears not to have been agitated in the courts below but it well may have a bearing on the rights of the persons who now claim entitlement to its balance.

In these circumstances, the case is not a suitable vehicle in which to agitate the point raised by the application.  Accordingly special leave is refused and will be refused with costs. 

The Court will now adjourn.

AT 2.50 PM THE MATTER WAS CONCLUDED