Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd

Ausipile Pty Ltd, a subcontractor, engaged in a dispute with Bothar Boring and Tunnelling (Australia) Pty Ltd, the principal contractor, over progress payments under a subcontract agreement. Ausipile applied for judgment to recover amounts owing under a payment claim, pursuant to section 78(2)(a) of the Building Industry (Security of Payment) Act 2017 (Qld). The parties agreed that Ausipile was entitled to judgment unless Bothar could establish a defence. Bothar raised several defences, including claims of misleading or deceptive conduct by Ausipile, a variation in the payment due dates, and a void payment claim due to the inclusion of a variation amount for the hire of a crawler crane.

The court examined whether Ausipile's silence in the face of Bothar's letter withholding further payment claims was misleading or deceptive. It concluded that there was no evidence to support a finding that Ausipile's silence was misleading or deceptive or likely to mislead or deceive. The court also considered whether the payment terms under the subcontract had been varied. It found that there was no evidence of an agreement to vary the payment terms, and the differing payment due dates in the various documents did not constitute a variation. Finally, the court examined whether the payment claim was void due to the inclusion of a variation amount for the crawler crane hire. It held that the claim was not void, as the hire of the crawler crane was necessary to complete works under the head contract and the payment claim was not in relation to two contracts.

The court dismissed Ausipile's application for judgment and adjourned the question of costs to a later date. The court held that Bothar had established a defence to the payment claim, and therefore Ausipile was not entitled to judgment. The court did not make any orders as to costs, as the question was adjourned to a later date.