A E Smith and Son NQ Pty Ltd v Coastline Constructions Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

A E Smith & Son NQ Pty Ltd v Coastline Constructions Pty Ltd [2006] QDC 510

PARTIES:

A E SMITH & SON NQ PTY LTD

Applicant

AND

COASTLINE CONSTRUCTIONS PTY LTD

Respondent

FILE NO/S:

BD2504/06

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District court, Brisbane

DELIVERED ON:

8 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2006

JUDGE:

McGill DCJ

ORDER:

Directions given for pleadings as agreed; costs reserved.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Recovery of Monies – statutory debt – procedure for recovery – whether payment claims made

PRACTICE – Originating Application – whether appropriate to recover amount payable as a debt by statute

Building and Construction Payments Act 2004 s 19

UCPR r 11(a)

Vanbeelen v Blackbird Energy Pty Ltd [2006] QDC 285 – cited.

COUNSEL:

A. M. Hoare for applicant

R. N. Traves SC and N. Andreatides for respondent

SOLICITORS:

1. In this matter the applicant has filed an originating application seeking a judgment in respect of an amount said to have been claimed by payment claim under the Building and Construction Payments Act 2004.  Under that Act a person such as the applicant can serve what is identified as a payment claim on a person for whom the applicant is doing building work under a construction contract.

1. Under s 17(2) a payment claim must identify the construction work or related goods and services to which the progress payment relates, and must state the amount of the progress payment that the claimant claims to be payable (the claimed amount) and must state that it is made under this Act.

1. Two documents purporting to be payment claims were served by the applicant on the respondent.  Under s 18 of the Act a respondent served with a payment claim responds by serving a payment schedule on the claimant.  If the respondent does not serve a payment schedule on the claimant within the particular time fixed under the contract or by the statute, the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the progress claim relates.

1. There is then a provision in s 19 that the claimant may recover the unpaid portion of the claimed amount from the respondent as a debt owing to the claimant in any Court of competent jurisdiction.  If a claimant starts proceedings to recover that amount judgment is not to be given unless the Court is satisfied of certain matters specified in subsection 19(1).  But the respondent is not entitled to bring any counterclaim against the claimant or to raise any defence in relation to matters arising under the construction contract.  Section 100 reserves the parties’ rights to litigate these matters later at their leisure.

1. I have had reference to the objects and purpose of the statute in ss 7 and 8.  It seems to be obvious that the intention of the legislature was that there should be a simple and expeditious way in which a person…