Advance Traders Pty Ltd v McNab Constructions Pty Ltd - [2011] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

Advance Traders Pty Ltd v McNab Constructions Pty Ltd & anor [2011] QSC 212

PARTIES:

ADVANCE TRADERS PTY LTD
ACN 009 672 002
(Plaintiff)

v

McNAB CONSTRUCTIONS PTY LTD
ACN 073 311 681
(First Defendant)

and

McNAB CONSTRUCTIONS AUSTRALIA PTY LTD
ACN 102 840 906
(Second Defendant)

FILE NO/S:

BS 9687 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 August 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 July 2011

JUDGE:

Boddice J

ORDER:

The application is dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – Where the defendants apply for an order pursuant to r 483 Uniform Civil Procedure Rules 1999 (Qld) for the separate determination of questions in the proceeding – Where the defendants submit that the separate determination of those questions will result in savings of time and cost – Whether it is just and convenient for the order to be made

Queensland Building Services Authority Act 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd [2010] QSC 463

Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629–37 of 1995, 8 September 1995, BC9502745)

Evans Deakin Industries Ltd v Commonwealth [1983] 1 Qd R 40

Heery v Criminal Justice Commission [2001] 2 Qd R 610

Lee v Arisaig Pty Ltd & Ors [2005] QSC 265

McNab Constructions Pty Ltd v Queensland Building Services Authority [2010] QCA 380

Puerto Galera Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2008] QSC 356

Pico Holdings Inc v Wave Vistas Pty Ltd [2003] QCA 204

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495

Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287

Sherlex Pty Ltd v Thornton & Ors [2003] QCA 461

State of Queensland v Dale and Meyers Operations Pty Ltd [2010] QSC 361

Watpac Civil Infrastructure Pty Ltd (formerly JMS Civil & Mining (Aust) Pty Ltd) v Komatsu Pty Ltd [2009] QSC 281

COUNSEL:

Doyle SC with Trim, M for the plaintiff/respondent

Fraser QC with Codd, B for the first and second defendants/applicants

SOLICITORS:

McInnes Wilson for the plaintiff/respondent

Lenz Moreton for the first and second defendants/applicants

By application filed 31 May 2011 the first and second defendants (“the defendants”) make application for an order pursuant to r 483 of the Uniform Civil Procedure Rules 1999 (“UCPR”) for the separate determination of the following questions in the proceeding:

(a) whether the contract entered into on 22 December 2004 was made between the plaintiff, as principal, and the second defendant, as construction manager;

(b) whether the services agreed to be provided by the construction manager under the contract were “building work” within the meaning of that term as used in s 42 of the Queensland Building Services Authority Act 1991 (“QBSA Act”);

(c) whether any contractor’s licence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QSC 212
Decision Date: 4 August 2011

CaseChat Overview and Summary

Advance Traders Pty Ltd, a construction company, commenced proceedings against McNab Constructions Pty Ltd, also a construction company, in the Supreme Court of Queensland. The dispute concerns a contract for the construction of a commercial building. Advance Traders alleges that McNab Constructions breached the contract by failing to complete the building on time and by delivering substandard work. McNab Constructions, in turn, seeks to have certain questions in the proceeding determined separately from the main trial.

The central legal issue before the court was whether it was just and convenient to grant McNab Constructions' application for a separate determination of certain questions under rule 483 of the Uniform Civil Procedure Rules 1999 (Qld). McNab Constructions argued that a separate determination would result in savings of time and cost, thereby promoting the just and efficient resolution of the dispute. Advance Traders opposed the application, contending that a separate determination would not result in the efficient disposal of the matter and would potentially prejudice their ability to present a coherent case.

The court considered the relevant factors under rule 483, including the nature of the questions, the complexity of the case, and the potential for prejudice to either party. The court found that the questions McNab Constructions sought to have determined separately were not sufficiently discrete or distinct from the main issues in the proceeding. Furthermore, the court was of the view that a separate determination would not necessarily result in savings of time and cost and might actually complicate the overall management of the case. Consequently, the court held that it was not just and convenient to make the order for a separate determination of the questions.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Advance Traders Pty Ltd v McNab Constructions Pty Ltd & anor [2011] QSC 212
PARTIES:	ADVANCE TRADERS PTY LTD ACN 009 672 002 (Plaintiff) v McNAB CONSTRUCTIONS PTY LTD ACN 073 311 681 (First Defendant) and McNAB CONSTRUCTIONS AUSTRALIA PTY LTD ACN 102 840 906 (Second Defendant)
FILE NO/S:	BS 9687 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	22 July 2011
JUDGE:	Boddice J
ORDER:	The application is dismissed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – Where the defendants apply for an order pursuant to r 483 Uniform Civil Procedure Rules 1999 (Qld) for the separate determination of questions in the proceeding – Where the defendants submit that the separate determination of those questions will result in savings of time and cost – Whether it is just and convenient for the order to be made Queensland Building Services Authority Act 1991 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd [2010] QSC 463 Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629–37 of 1995, 8 September 1995, BC9502745) Evans Deakin Industries Ltd v Commonwealth [1983] 1 Qd R 40 Heery v Criminal Justice Commission [2001] 2 Qd R 610 Lee v Arisaig Pty Ltd & Ors [2005] QSC 265 McNab Constructions Pty Ltd v Queensland Building Services Authority [2010] QCA 380 Puerto Galera Pty Ltd v J M Kelly (Project Builders) Pty Ltd [2008] QSC 356 Pico Holdings Inc v Wave Vistas Pty Ltd [2003] QCA 204 Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287 Sherlex Pty Ltd v Thornton & Ors [2003] QCA 461 State of Queensland v Dale and Meyers Operations Pty Ltd [2010] QSC 361 Watpac Civil Infrastructure Pty Ltd (formerly JMS Civil & Mining (Aust) Pty Ltd) v Komatsu Pty Ltd [2009] QSC 281
COUNSEL:	Doyle SC with Trim, M for the plaintiff/respondent Fraser QC with Codd, B for the first and second defendants/applicants
SOLICITORS:	McInnes Wilson for the plaintiff/respondent Lenz Moreton for the first and second defendants/applicants