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

Ausipile Pty Ltd appealed against a decision dismissing its application for judgment under s 78(2)(a) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld). Ausipile and Bothar Boring and Tunnelling (Australia) Pty Ltd entered a subcontract agreement for Ausipile to design and construct a secant pile launch shaft. Ausipile hired a crawler crane from Bothar for use under the head contract. Ausipile submitted a payment claim, which included a claim for a variation in relation to the hire of the crawler crane. Bothar argued that the variation related to a contract other than the subcontract, and that the payment claim contained claims in relation to two contracts, and was void for the purpose of the Act. The primary judge dismissed Ausipile’s application for judgment. Ausipile appealed to the Supreme Court of Appeal.

The appeal raised issues about the nature of the agreement between Ausipile and Bothar for the hire of the crawler crane. The court considered the terms of the subcontract and the circumstances surrounding the hire of the crawler crane. The court examined the context in which the exchange concerning the hire of the crawler crane occurred, and considered the presumed intention of the contracting parties. The court concluded that the hire of the crawler crane was a variation under the subcontract, and that the payment claim did not contain claims in relation to two contracts. The court held that the payment claim was not void for the purpose of the Act.

The court allowed the appeal, set aside the orders made on 5 March 2021, and entered judgment for Ausipile against Bothar in the amount of $761,296.75. The parties were granted leave to make submissions on the question of interest. Bothar was ordered to pay Ausipile’s costs of and incidental to the appeal, and the costs of proceeding BS 8953 of 2019.