AWX Constructions Pty Ltd v IDH Modular Pty Ltd - [2013] QSC 218

SUPREME COURT OF QUEENSLAND

CITATION:

AWX Constructions Pty Ltd v IDH Modular Pty Ltd & Anor [2013] QSC 218

PARTIES:

AWX CONSTRUCTIONS PTY LTD ACN 118 400 098
(applicant)
v
IDH MODULAR PTY LTD ACN 158 878 874
(first respondent)
BM ALLIANCE COAL OPERATIONS PTY LTD
ACN 096 412 752
(second respondent)

FILE NO:

BS6137 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

23 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2013

JUDGE:

Mullins J

ORDER:

1.    The originating application is adjourned to a date to be fixed.

2.    The applicant must pay the first respondent’s costs of and incidental to the hearing of the application summarily on 17 July 2013 to be assessed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – SUBCONTRACTORS’ CHARGES ACT (QLD) – where the first respondent was engaged as subcontractor for the supply of modular housing for the purpose of the head contract – where the respondent claimed a charge over money payable under the head contract pursuant to the Subcontractors’ Charges Act 1974 (Qld) – where the applicant applies pursuant to s 21 of the Act for an order that the claim of charge be cancelled – whether the issues may be disposed of summarily

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first respondent was engaged as sub-contractor for the supply of modular housing for the purposes of the head contract – where s 42 of the Queensland Building Services Authority Act 1991 (Qld) prohibits undertaking to carry out building work without the appropriate licence – where the respondent was licensed – whether the subcontract required the respondent to engage in building work

Queensland Building Services Authority Act 1991, s 42 Subcontractors’ Charges Act 1974, s 21

Dart Holdings Pty Ltd v Total Concept Group Pty Ltd [2012] QSC 158, considered
Multiplex Constructions Pty Ltd v Abigroup Contractors Pty Ltd [2005] 1 Qd R 610, considered
Multiplex Constructions Pty Ltd v Rapid Contracting Pty Ltd (in liq) [1999] QCA 306, considered

COUNSEL:

J K Bond QC and M Jones for the applicant
M Williams for the first respondent

SOLICITORS:

Thomsons Lawyers for the applicant
Lenz Moreton for the first respondent

The applicant is the contractor under the head contract with the second respondent as the principal for the design and installation of modular housing at Barron Court and Utah Drive, Moranbah for the principal's employees. The first respondent (the respondent) entered into a subcontract as the subcontractor with the applicant for the supply of modular housing for the purposes of the head contract.

On 26 June 2013 the respondent took steps pursuant to the Subcontractors’ Charges Act 1974 (the Act) to claim a charge in the sum of $5.7m over money payable or to become payable to the applicant under the head contract.

The applicant applies pursuant to s 21 of the Act for an order that the claim of…

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: [2013] QSC 218
Decision Date: 23 August 2013

CaseChat Overview and Summary

The case before the court was an application by AWX Constructions Pty Ltd against IDH Modular Pty Ltd. The dispute revolves around a claim by IDH Modular for a charge over money payable under a head contract for the supply of modular housing. IDH Modular, as a subcontractor, sought to enforce its claim under the Subcontractors’ Charges Act 1974 (Qld). AWX Constructions applied under section 21 of the Act to cancel this claim, arguing the issues could be resolved summarily.

The court had to determine whether the matters raised in the application could be disposed of summarily, and if the subcontract required IDH Modular to engage in building work, which would contravene section 42 of the Queensland Building Services Authority Act 1991 (Qld) if they were not appropriately licensed. The court considered the terms of the subcontract and the obligations of IDH Modular under both the head contract and the Subcontractors’ Charges Act.

In its reasoning, the court found that the issues were complex and could not be resolved summarily. The court highlighted that the interpretation of the contracts and the obligations of the parties under the Subcontractors’ Charges Act required thorough examination. The court also noted the importance of ensuring compliance with the Queensland Building Services Authority Act. Consequently, the court adjourned the originating application to allow for a detailed hearing and ordered AWX Constructions to pay the costs of the summary hearing to IDH Modular.

Orders

Orders of the court

1. The originating application is adjourned to a date to be fixed.

2. The applicant must pay the first respondent’s costs of and incidental to the hearing of the application summarily on 17 July 2013 to be assessed.

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:	AWX Constructions Pty Ltd v IDH Modular Pty Ltd & Anor [2013] QSC 218
PARTIES:	AWX CONSTRUCTIONS PTY LTD ACN 118 400 098 (applicant) v IDH MODULAR PTY LTD ACN 158 878 874 (first respondent) BM ALLIANCE COAL OPERATIONS PTY LTD ACN 096 412 752 (second respondent)
FILE NO:	BS6137 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating application
DELIVERED ON:	23 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 July 2013
JUDGE:	Mullins J
ORDER:	1. The originating application is adjourned to a date to be fixed. 2. The applicant must pay the first respondent’s costs of and incidental to the hearing of the application summarily on 17 July 2013 to be assessed.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – SUBCONTRACTORS’ CHARGES ACT (QLD) – where the first respondent was engaged as subcontractor for the supply of modular housing for the purpose of the head contract – where the respondent claimed a charge over money payable under the head contract pursuant to the Subcontractors’ Charges Act 1974 (Qld) – where the applicant applies pursuant to s 21 of the Act for an order that the claim of charge be cancelled – whether the issues may be disposed of summarily CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the first respondent was engaged as sub-contractor for the supply of modular housing for the purposes of the head contract – where s 42 of the Queensland Building Services Authority Act 1991 (Qld) prohibits undertaking to carry out building work without the appropriate licence – where the respondent was licensed – whether the subcontract required the respondent to engage in building work Queensland Building Services Authority Act 1991, s 42 Subcontractors’ Charges Act 1974, s 21 Dart Holdings Pty Ltd v Total Concept Group Pty Ltd [2012] QSC 158, considered Multiplex Constructions Pty Ltd v Abigroup Contractors Pty Ltd [2005] 1 Qd R 610, considered Multiplex Constructions Pty Ltd v Rapid Contracting Pty Ltd (in liq) [1999] QCA 306, considered
COUNSEL:	J K Bond QC and M Jones for the applicant M Williams for the first respondent
SOLICITORS:	Thomsons Lawyers for the applicant Lenz Moreton for the first respondent