Baxbex Pty Ltd v Bickle

[2009] QSC 194

SUPREME COURT OF QUEENSLAND

CITATION:

Baxbex Pty Ltd v Bickle [2009] QSC 194

PARTIES:

BAXBEX PTY LTD
(applicant)
v
BICKLE
(respondent)

FILE NO:

5471 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

28 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

17 June 2009

JUDGE:

Daubney J

ORDER:

1.    The application be dismissed;

2.     The payment claim dated 27 April 2009 be set aside; and

3.    The applicant pay the respondent’s costs of and incidental to the application, to be assessed.

CATCHWORDS:

CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACT – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the applicant served on the respondent a payment claim pursuant to s17 of the Building and Construction Payments Act 2004 – where the respondent did not file a payment schedule within 10 days of receiving the payment claim or at all – where applicant claimed in those circumstances the respondent became liable to pay the amount claimed – whether there was a valid payment claim – whether part of the payment claim was not for construction work or for related goods or services.

Building and Construction Industry Payments Act 2004 (Qld)

Austruct Qld Pty Ltd v Independent Pub Group Pty Ltd [2009] QSC 1, applied
Brodyn Pty Ltd t/a Time Cost and Quality v Davenport (2004) 61 NSWLR 421, applied
F.K. Gardner & Sons Pty Lt v Dimin Pty Ltd [2006] 1 Qd R 10, applied
Isis Projects v Clarence Street [2004] NSWSC 714, considered
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (In Liq) (2005) 64 NSWLR 462, considered

COUNSEL:

M D Martin for the applicant
C J Carrigan for the respondent

SOLICITORS:

R B Lawyers for the applicant
Quinlan Miller & Treston for the respondent

1. On 23 April 2007, the applicant and the respondent entered into a commercial building contract for the construction by the applicant of two 3 storey buildings.  It was a “cost plus 10%” contract, with invoices to be sent for progress claims on Friday of each week.

1. By letter dated 27 April 2009 the applicant served on the respondent a payment claim pursuant to s 17 of the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”), claiming the sum of $148,819.10.  In this claim it was said:

“In accordance with s 17 of the Act we advise:-

(a)        the construction work and/or goods and services to which our client’s progress claim relates is as particularised in the schedule hereto;

(b)        the amount of the progress claim that the Plaintiff claims to be payable is $148,819.10; and

(c)        the claim is made in accordance with the Act.”

1. The respondent did not file a payment schedule within 10 days of receiving the payment claim or at all.  It was submitted by the applicant that in those circumstances the respondent became liable to pay the amount claimed.[1] Accordingly, the applicant has applied for judgment in the…