Ball Construction Pty Ltd v Conart Pty Ltd - [2014] QSC 124

SUPREME COURT OF QUEENSLAND

CITATION:

Ball Construction Pty Ltd v Conart Pty Ltd [2014] QSC 124

PARTIES:

BALL CONSTRUCTION PTY LTD
ABN 94 108 548 778

(applicant)

v

CONART PTY LTD
ABN 50 153 867 228

(first respondent)

and

RICS AUSTRALASIA PTY LTD
ABN 18 089 873 067

(second respondent)

and

JENNIFER WYATT
ADJUDICATOR REGISTRATION NO J1070846

(third respondent)

FILE NO:

BS 7482 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 June 2014

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2014

JUDGE:

Douglas J

ORDER:

Adjudicator’s decision quashed. Further submissions sought as to the form of order and costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND CONDITIONS – VARIATIONS – where the applicant and a company entered into a building contract – where that company and the first respondent entered into a deed of assignment with the consent of the applicant – where the director of the original construction company swore a statutory declaration – where the director of the first respondent also swore a statutory declaration – where the statutory declarations stated that no variations, claims or disputes existed – whether the statutory declarations and the agreement to enter into a deed of assignment created an estoppel

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where a dispute about the date for practical completion under the contract arose – where liquidated damages and variations were also disputed – where an adjudicator appointed under the Building and Construction Industry Payments Act 2004 adjudicated a payment claim – where the applicant and first respondent entered into a deed – where by that deed the first respondent undertook not to enforce the adjudication certificate – where the third respondent then adjudicated a further payment claim – whether there were jurisdictional errors in the third respondent’s adjudication decision – whether the first respondent had engaged in an abuse of process – whether the adjudication should be declared void or quashed

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – whether work carried out before the deed was work under the construction contract

CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – DISCHARGE BY AGREEMENT – NOVATION – whether the agreement between the applicant and the first respondent was an assignment or a novation

Building and Construction Industry Payments Act 2004 (Qld), s 3(2)(c), s 7, s 12, s 13, s 14, s 17, s 25, s 26

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2013] QCA 394, followed
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, cited
David & Gai Spankie & Northern Investment Holdings Pty Ltd v James Trowse Constructions Pty Ltd & Ors (No 2)[2010] QSC 166, cited

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: [2014] QSC 124
Decision Date: 6 June 2014

CaseChat Overview and Summary

Ball Construction Pty Ltd was the applicant in this case against Conart Pty Ltd, the first respondent. The dispute centred on a building contract that had been entered into between the applicant and the original construction company. This company later assigned its rights and obligations under the contract to the first respondent, with the applicant's consent. The crux of the matter involved the interpretation of statutory declarations made by the directors of both the original construction company and the first respondent, which stated that there were no variations, claims, or disputes at the time of the assignment. The applicant argued that these declarations and the consent to the assignment created an estoppel. Additionally, the applicant questioned whether the deed of assignment constituted an assignment or a novation of the contract.

The court was tasked with deciding several legal issues. Firstly, whether the statutory declarations and the agreement to enter into a deed of assignment created an estoppel that precluded the first respondent from enforcing claims or disputes. Secondly, whether there were any jurisdictional errors in the adjudication decisions made by the third respondent. Thirdly, whether the first respondent had engaged in an abuse of process by initiating the adjudication. Finally, whether the work carried out before the deed of assignment was work under the original construction contract.

The court found that the statutory declarations and the agreement to enter into the deed of assignment did not create an estoppel. The court also found that the third respondent had made jurisdictional errors in their adjudication decision, leading to the quashing of the adjudicator's decision. The court determined that the first respondent had not engaged in an abuse of process. Regarding the nature of the agreement, the court found that the deed of assignment constituted a novation rather than an assignment. The court sought further submissions regarding the form of order and the costs involved.

Orders

Orders of the court

Adjudicator’s decision quashed. Further submissions sought as to the form of order and costs.

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:	Ball Construction Pty Ltd v Conart Pty Ltd [2014] QSC 124
PARTIES:	BALL CONSTRUCTION PTY LTD ABN 94 108 548 778 (applicant) v CONART PTY LTD ABN 50 153 867 228 (first respondent) and RICS AUSTRALASIA PTY LTD ABN 18 089 873 067 (second respondent) and JENNIFER WYATT ADJUDICATOR REGISTRATION NO J1070846 (third respondent)
FILE NO:	BS 7482 of 2013
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	6 June 2014
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2014
JUDGE:	Douglas J
ORDER:	Adjudicator’s decision quashed. Further submissions sought as to the form of order and costs.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND CONDITIONS – VARIATIONS – where the applicant and a company entered into a building contract – where that company and the first respondent entered into a deed of assignment with the consent of the applicant – where the director of the original construction company swore a statutory declaration – where the director of the first respondent also swore a statutory declaration – where the statutory declarations stated that no variations, claims or disputes existed – whether the statutory declarations and the agreement to enter into a deed of assignment created an estoppel CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where a dispute about the date for practical completion under the contract arose – where liquidated damages and variations were also disputed – where an adjudicator appointed under the Building and Construction Industry Payments Act 2004 adjudicated a payment claim – where the applicant and first respondent entered into a deed – where by that deed the first respondent undertook not to enforce the adjudication certificate – where the third respondent then adjudicated a further payment claim – whether there were jurisdictional errors in the third respondent’s adjudication decision – whether the first respondent had engaged in an abuse of process – whether the adjudication should be declared void or quashed CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – whether work carried out before the deed was work under the construction contract CONTRACTS – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – DISCHARGE BY AGREEMENT – NOVATION – whether the agreement between the applicant and the first respondent was an assignment or a novation Building and Construction Industry Payments Act 2004 (Qld), s 3(2)(c), s 7, s 12, s 13, s 14, s 17, s 25, s 26 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd[2013] QCA 394, followed Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421, cited David & Gai Spankie & Northern Investment Holdings Pty Ltd v James Trowse Constructions Pty Ltd & Ors (No 2)[2010] QSC 166, cited