Agripower Australia Ltd v Queensland Engineering and Electrical Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Agripower Australia Ltd v Queensland Engineering & Electrical Pty Ltd & Ors [2015] QSC 268

PARTIES:

AGRIPOWER AUSTRALIA LTD 
ACN 132 823 226

(applicant)

v
QUEENSLAND ENGINEERING & ELECTRICAL PTY LTD
ACN 138 279 026

(first respondent)
ADJUDICATE TODAY PTY LIMITED
ACN 109 605 021
(second respondent)
CALLUM CAMPBELL
(third respondent)

FILE NO/S:

BS No 1597 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2015

JUDGE:

Douglas J

ORDER:

1.   It is declared that the adjudication decision 1057877_3025 dated 18 December 2014 by the adjudicator Callum Campbell (the Adjudication Decision) is void.

2.   It is declared that the adjudication certificate issued by the second respondent in respect of the Adjudication Decision is void.

3.   The first respondent is permanently restrained from enforcing or otherwise relying upon the Adjudication Decision.

4.   The first respondent is to pay the applicant’s costs of and incidental to the originating application, including reserved costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant sought a declaration that an adjudication decision, purportedly made under the Building and Construction Industry Payments Act 2004 (Qld) (“the Payments Act”), was void and for ancillary relief – where the applicant submitted that the adjudication decision was invalid because the contract between the applicant and first respondent was illegal and unenforceable arising from the breach of two statutory provisions, one dealing with electrical safety and the other dealing with work that can only be performed by professional engineers – whether the first respondent had contravened s 56 of the Electrical Safety Act 2002 (Qld) by advertising it carried on the business of performing electrical work and performing such work when it was not the holder of an electrical contractor’s licence then in force – whether this alleged breach rendered the relevant contract illegal and recovery under the Payments Act unavailable – whether the applicant and its agents were not practising professional engineers but were carrying out professional engineering services contrary to s 115 of the Professional Engineers Act 2002 (Qld), which provides that a person who is not a practising professional engineer must not carry out professional engineering services

Building and Construction Industry Payments Act 2004 (Qld)
Electrical Safety Act 2002 (Qld), ss 4, 5, 15, 18(1)(b), 56
Professional Engineers Act 2002 (Qld), ss 115, 141

Cant Contracting Pty Ltd v Casella [2007] 2 Qd R 13; [2006] QCA 538, followed
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38, cited
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, followed

COUNSEL:

M H Hindman for the applicant
M T Hickey for the first respondent

No appearance for the second and third respondents

SOLICITORS:

TressCox Lawyers for the applicant for argument and Shine…

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Details
Case
[2015] QSC 268
Decision Date

CaseChat Overview and Summary

Agripower Australia Ltd sought a declaration that an adjudication decision, made under the Building and Construction Industry Payments Act 2004 (Qld), was void and for ancillary relief. The decision in question related to a contract between Agripower Australia and Queensland Engineering and Electrical Pty Ltd (the first respondent). The primary legal issue before the court was whether the first respondent's contract with Agripower Australia was illegal and, therefore, unenforceable, rendering the adjudication decision void. This hinged on whether the first respondent had contravened the Electrical Safety Act 2002 (Qld) by performing electrical work without a necessary licence and whether it had performed professional engineering services in breach of the Professional Engineers Act 2002 (Qld) without being a practising professional engineer.

The court found that the first respondent had indeed contravened s 56 of the Electrical Safety Act by advertising and performing electrical work without the required licence. Additionally, the court determined that the first respondent was not a practising professional engineer, yet it was carrying out professional engineering services in breach of s 115 of the Professional Engineers Act. Based on these findings, the court concluded that the contract was illegal and unenforceable under s 115(1) of the Professional Engineers Act, aligning with the decision in Cant Contracting Pty Ltd v Casella. Consequently, the adjudication decision was void for jurisdictional error because it was made on the basis of an illegal contract. The court further ordered that the adjudication decision and the related certificate were void, and the first respondent was permanently restrained from enforcing the adjudication decision. The court also ordered the first respondent to pay Agripower Australia's costs of and incidental to the originating application, including reserved costs.

Orders

Orders of the court

1. It is declared that the adjudication decision 1057877_3025 dated 18 December 2014 by the adjudicator Callum Campbell (the Adjudication Decision) is void.

2. It is declared that the adjudication certificate issued by the second respondent in respect of the Adjudication Decision is void.

3. The first respondent is permanently restrained from enforcing or otherwise relying upon the Adjudication Decision.

4. The first respondent is to pay the applicant’s costs of and incidental to the originating application, including reserved costs.

Background

Background to the litigation

The first respondent accepted that, if it were carrying out professional engineering services in breach of the Professional Engineers Act, then its contract was illegal and unenforceable, pursuant to s 115(1). That conclusion is supported by the decision in Cant Contracting Pty Ltd v Casella.[1] [1] [2007] 2 Qd R 13.Background facts The first respondent’s director, Mr David Dillon, says in his affidavit filed 1 April 2015 that the first respondent carries on the business of providing electrical engineering and electrical works. He holds a bachelor’s degree in electrical engineering technology, but neither the company nor he is licensed to carry out electrical works. Nor is he a registered professional engineer pursuant to the Professional Engineers Act. The applicant argues that the contract between it and the first respondent was one pursuant to which the first respondent performed, either through Mr Dillon or through subcontractors, electrical engineering works contrary to the provisions of the Electrical Safety Act and the Professional Engineers Act. Mr Dillon was approached by the applicant’s project manager in early February 2013. He offered to provide electrical engineering works for the applicant at a site at Charters Towers. In about mid April 2013 he provided some modified powder plant drawings to the applicant which he says did not require any design or engineering input from him but were depicting works that had been designed and installed by others. Later in April 2013 he agreed to do the commissioning of the powder plant works which included starting and stopping each part of the plant and proving that each stop and start button worked as required. As part of the commissioning works he drafted step by step procedures on what to do and how to start each part of the plant. He says that he and another man called Scott Ross were there to ensure that the electrical equipment was operational. In his affidavit, however, he denied carrying out any electrical works at the plant. Then, in early July 2013, he agreed to carry out the preliminary electrical design portion of the works for a new plant called the granulation plant. That involved the carrying out of an audit on a number of second-hand switchboards retrieved from elsewhere intended to be used at the granulation plant. He later agreed, also in early July 2013, to provide drawings for the location of conduits for a switch room. On about 8 August 2013, he told the applicant’s representative that the first respondent was happy to provide an experienced industrial electrical contractor to carry out electrical work on the switch room and granulation plant for the applicant. He provided conduit drawings and the proposed switchboard audit to the applicant. The conduit drawings included an allowance for a future connection to a transformer. He says that those drawings were completed in accordance with Australian Standards, AS3000 and AS3008, which he referred to as prescriptive standards for the relevant electrical works.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly I have formed the view that the first respondent’s contract was also illegal as contrary to s 115(1) of the Professional Engineers Act.Conclusion and orders Those conclusions on the facts of the case lead me to decide, consistently with Cant Contracting Pty Ltd v Casella,[19] that the first respondent’s contract with the applicant was illegal. The result is that it was not entitled to progress payments under the Payments Act and the adjudication decision is void for jurisdictional error.[19] [2007] 2 Qd R 13. The consequence is that the application should succeed and I shall declare that the adjudication decision 1057877_3025 dated 18 December 2014 by the Adjudicator third respondent, Callum Campbell, is void. I shall also declare that the adjudication certificate issued by the second respondent in respect of the adjudication decision is void and restrain the first respondent from enforcing or otherwise relying upon the adjudication decision. Having heard the parties as to costs, I further order that the first respondent pay the applicant’s costs of and incidental to the originating application, including reserved costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.