BHW Solutions Pty Ltd v Altitude Constructions Pty Ltd - [2012] QSC 214

SUPREME COURT OF QUEENSLAND

CITATION:

BHW Solutions Pty Ltd v Altitude Constructions Pty Ltd [2012] QSC 214

PARTIES:

BHW SOLUTIONS PTY LTD
ACN 148 187 400
(applicant)
v
ALTITUDE CONSTRUCTIONS PTY LTD
ACN 121 441 861
(respondent)

FILE NO/S:

BS 6396 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

16 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2012

JUDGE:

Mullins J

ORDER:

1. Pursuant to s 19 of the Building and Construction Industry Payments Act 2004 judgment is entered for the applicant against the respondent in the amount of $1,400,136.38 (inclusive of interest of $37,855.93).

2. The respondent must pay the applicant’s costs of the application to be assessed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where subcontractor served payment claims on the contractor for the purpose of s 17 Building and Construction Industry Payments Act 2004 (Qld) – where the respondent did not serve payment schedules in response to the payment claims – where the contractual provision required a progress claim to be accompanied by a statutory declaration as a precondition to payment – whether absence of declaration invalidated payment claims

Building and Construction Industry Payments Act 2004, s 12, s 13, s 17, s 18, s 19, s 99, s 100

John Holland Pty Ltd v Coastal Dredging & Construction Pty Limited [2012] QCA 150, followed
Reed Construction (Qld) Pty Ltd v Martinek Holdings Pty Ltd [2011] 1 Qd R 28, considered
Spankie v James Trowse Constructions Pty Limited [2010] QCA 355, considered

Vis Constructions Ltd v Cockburn [2006] QSC 416, considered

COUNSEL:

MH Hindman for the applicant
FG Forde for the respondent

SOLICITORS:

Schweikert Harris for the applicant
JHK Legal for the respondent

The applicant applies for judgment against the respondent in the amount of $1,362,280.45 pursuant to s 19 of the Building and Construction Industry Payments Act 2004 (the Act). The respondent opposes the application on the basis that the applicant failed to fulfil the contractual condition precedent to any entitlement to payment and was therefore entitled neither to any progress payment under the contracts nor to serve a payment claim on the respondent.

It is common ground that there are two construction contracts between the parties for the supply of temporary accommodation units, described as the Moranbah project contract and the Glenden project contract. The applicant served on the respondent what it claims to be a payment claim for the purpose of s 17 of the Act in relation to each contract. The respondent did not serve payment schedules in response to either payment claim. Under s 18(5) of the Act the respondent is liable to pay the claimed amount to the applicant for the progress payments to which the payment claims relate. That is why to resist summary judgment based on s 19 of the Act the respondent submits the payment claims are invalid.

The Act

There are many…

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: [2012] QSC 214
Decision Date: 16 August 2012

CaseChat Overview and Summary

In the case of BHW Solutions Pty Ltd v Altitude Constructions Pty Ltd, the Queensland Court of Appeal was tasked with determining the validity of payment claims submitted under the Building and Construction Industry Payments Act 2004 (Qld). BHW Solutions, a subcontractor, submitted payment claims to Altitude Constructions, the main contractor, for work completed. The claims were intended to enforce the statutory rights to prompt payment. However, Altitude Constructions did not respond with payment schedules as required by the Act. Instead, Altitude Constructions raised objections, arguing that the payment claims were invalid because they were not accompanied by statutory declarations, as required by the contractual terms between the parties.

The primary legal issue before the court was whether the absence of statutory declarations in the payment claims rendered them invalid, thus precluding BHW Solutions from enforcing its statutory rights to prompt payment. The court considered whether the contractual requirement for statutory declarations could override the statutory provisions under the Act, which provide for a streamlined process for payment claims. The court also had to determine the effect of the statutory right to prompt payment and whether it could be frustrated by contractual requirements not explicitly authorised by the Act.

The court held that the statutory right to prompt payment is a substantive entitlement provided under the Building and Construction Industry Payments Act 2004, and it is not subject to contractual preconditions that are not expressly authorised by the Act. The court emphasised that the Act was designed to protect subcontractors and ensure timely payments in the construction industry. The contractual requirement for statutory declarations did not align with the legislative intent to provide a straightforward mechanism for payment claims. Consequently, the absence of declarations did not invalidate the payment claims. The court found in favour of BHW Solutions and ordered Altitude Constructions to pay the full amount claimed, inclusive of interest. Additionally, Altitude Constructions was ordered to pay the costs of the application as per the provisions of the Act.

Orders

Orders of the court

1. Pursuant to s 19 of the Building and Construction Industry Payments Act 2004 judgment is entered for the applicant against the respondent in the amount of $1,400,136.38 (inclusive of interest of $37,855.93).

2. The respondent must pay the applicant’s costs of the application 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:	BHW Solutions Pty Ltd v Altitude Constructions Pty Ltd [2012] QSC 214
PARTIES:	BHW SOLUTIONS PTY LTD ACN 148 187 400 (applicant) v ALTITUDE CONSTRUCTIONS PTY LTD ACN 121 441 861 (respondent)
FILE NO/S:	BS 6396 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	16 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	6 August 2012
JUDGE:	Mullins J
ORDER:	1. Pursuant to s 19 of the Building and Construction Industry Payments Act 2004 judgment is entered for the applicant against the respondent in the amount of $1,400,136.38 (inclusive of interest of $37,855.93). 2. The respondent must pay the applicant’s costs of the application to be assessed.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where subcontractor served payment claims on the contractor for the purpose of s 17 Building and Construction Industry Payments Act 2004 (Qld) – where the respondent did not serve payment schedules in response to the payment claims – where the contractual provision required a progress claim to be accompanied by a statutory declaration as a precondition to payment – whether absence of declaration invalidated payment claims Building and Construction Industry Payments Act 2004, s 12, s 13, s 17, s 18, s 19, s 99, s 100 John Holland Pty Ltd v Coastal Dredging & Construction Pty Limited [2012] QCA 150, followed Reed Construction (Qld) Pty Ltd v Martinek Holdings Pty Ltd [2011] 1 Qd R 28, considered Spankie v James Trowse Constructions Pty Limited [2010] QCA 355, considered Vis Constructions Ltd v Cockburn [2006] QSC 416, considered
COUNSEL:	MH Hindman for the applicant FG Forde for the respondent
SOLICITORS:	Schweikert Harris for the applicant JHK Legal for the respondent