Bost Civil Pty Ltd v Cornerstone Building Developments Australia Pty Ltd - [2022] ACTMC 27

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bost Civil Pty Ltd v Cornerstone Building Developments Australia Pty Ltd
Citation:	[2022] ACTMC 27
Hearing Date:	21 December 2022
Decision Date:	21 December 2022
Before:	Magistrate Theakston
Decision:	See [23]
Catchwords:	BUILDING AND CONSTRUCTION – Application for summary judgment for defendant – contractual bar to make final payment claim – estoppel
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 1147
Cases Cited:	AGC Industries Pty Ltd v Karara Mining Ltd [2019] WASC 140 Bartier v Kounza Investments Pty Ltd [2003] QSC 390 Carlisle v Filara Pty Ltd [2002] ACTSC 33 John Goss Projects Pty Ltd v Leighton Contractors & Anor [2006] NSWSC 798 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 Spencer v Commonwealth [2010] HCA 28 Webster v Lampard [1993] HCA 57 Wilkie v Gordian Runoff Ltd [2005] HCA 17
Parties:	Bost Civil Pty Ltd (Plaintiff) Cornerstone Building Developments Australia Pty Ltd (Defendant)
Representation:	Counsel B Buckland (Plaintiff) J Hastie (Defendant)
Solicitors Mills Oakley (Plaintiff) Shand Taylor Lawyers (Defendant)
File Number:	CS 150 of 2022

MAGISTRATE THEAKSTON:

Introduction

The plaintiff claims a debt of approximately $240,000 from the defendant for civil works done in accordance with a construction contract. The defendant subsequently applied for summary judgment or, in the alternative, to have the pleadings in the statement of claim struck out.
Yesterday I refused the application, other than striking out paragraph [10] of the statement of claim – as the plaintiff abandoned its alternative claim of quantum meruit. These are my reasons.

Background

The defendant was the head contractor for the construction of a commercial building in Canberra. The plaintiff was contracted by the defendant to conduct civil earth works as part of that build. The defendant says the claim is doomed to fail because the contract requires any claim for payment to be made within a certain time, and the plaintiff made that claim two years after the relevant date.
The plaintiff says the contract is not clear about any such deadline and, in any event, the defendant should be estopped from relying on that provision due to an arrangement agreed between the parties and relied upon by the plaintiff.

Deadline to make final payment claim

Practical completion of the works was certified on 25 February 2019. The plaintiff pleads the final payment claim was subsequently provided to the defendant on 31 May 2022.
Clause 37.4 of the contract provided the mechanism for making payment of a final claim. It is informed by Item 31. Both provisions are reproduced below, with my emphasis added. The plaintiff is the Subcontractor, and the defendant is both the Main Contractor and the Subcontract Superintendent.
37.4 Final payment claim and certificate
In accordance with Item 31 the Subcontractor shall give the Subcontract Superintendent:
(a) a written final payment claim endorsed ‘Final Payment Claim’ being a progress claim together with all other claims whatsoever in connection with the subject matter of the Subcontract: and
(b) an executed…

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.

Keep reading for free

Create a free CaseChat account to read Bost Civil Pty Ltd v Cornerstone Building Developments Austr... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] ACTMC 27
Decision Date: 21 December 2022

CaseChat Overview and Summary

Bost Civil Pty Ltd (the plaintiff) sought summary judgment against Cornerstone Building Developments Australia Pty Ltd (the defendant) in relation to an outstanding payment. The dispute arose out of a building contract and the plaintiff argued that the defendant had not made the final payment in accordance with the contract terms. The defendant applied for summary judgment under the Court Procedures Rules 2006, r 1147, arguing that the plaintiff's claim was barred by estoppel. The primary legal issue for the court to determine was whether the plaintiff's claim was absolutely hopeless and should be summarily dismissed. The court also had to consider whether there were any factual issues that needed to be resolved before the case could proceed.

The court held that the plaintiff's claim was not absolutely hopeless and there was a prospect of its success. The court noted that there appeared to be factual issues that needed to be resolved before the case could proceed. The court also held that the plaintiff's pleadings needed to address the estoppel issue, which could be done within a reply. The court held that the defendant's application for summary judgment was not appropriate in the circumstances. The court noted that the authorities required a high degree of certainty before a plaintiff was summarily deprived of the opportunity to have its case properly tried. The court also held that the focus was on substance and not form, and that questions of fact were not to be decided in these applications.

The court made several orders in relation to the defendant's application. Paragraph 10 of the plaintiff's statement of claim was struck out, and the defendant's application for summary judgment was dismissed. The plaintiff was ordered to pay the defendant's costs of the application, and to file and serve any reply by the end of January 2023. The matter was listed on 21 February 2023 in the Registrar's List, and the defendant was given leave to appear by audio-visual link.

Orders

Orders of the court

See [23]

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

The Court Procedures Rules 2006, r 1147 provides:Summary judgment—for defendant(1) A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence.Note Pt 6.2 (Applications in proceedings) applies to an application under this rule.(2) The court may give judgment for the defendant against the plaintiff for the plaintiff's claim for relief (or part of it) if satisfied—(a)the claim (or part of it) is frivolous or vexatious; or(b)there is a good defence to the claim (or part of it) on the merits; or(c)the proceeding should be finally disposed of summarily or without pleadings.(3) court may make any other order it considers appropriate.Examplestay the proceeding This is a common provision found throughout Australian jurisdictions. The authorities, using various language, all insist that caution must be exercised before this step is taken. There needs to be a high degree of certainty before a plaintiff is summarily deprived of the opportunity to have its case properly tried. Examples of that language include, ‘the claim is unfounded’, ‘absolutely hopeless’, and ‘so obviously untenable that it cannot possibly succeed. See for example, Webster v Lampard [1993] HCA 57. The authorities also draw a distinction between a summary judgment for the defendant and a need to improve the defendant’s pleadings. The focus is on substance and not form. See for example, Carlisle v Filara Pty Ltd [2002] ACTSC 33. Further, the authorities confirm that within these applications, the court can determine questions or law, but questions of fact are not to be decided. In Spencer v Commonwealth [2010] HCA 28, French CJ and Gummow J explained at [25]:Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Ultimately, I was not persuaded, to the high degree of certainty required, that the plaintiff’s case was absolutely hopeless and there was no prospect of its success. Additionally, there appeared to be factual issues that remained to be resolved. Accordingly, I will not give judgment for the defendant on a summary basis. It was agreed that the plaintiff’s pleadings needed to address the estoppel issue and that could be done within a reply. It was also agreed that as alternative claim of quantum meruit was abandoned, paragraph [10] of the statement of claim should be struck out. The Court made the following orders:1. Paragraph 10 of the statement of claim is struck out.2. The application in proceeding filed by the defendant on 7 December 2022 is otherwise dismissed.3. The plaintiff is to pay the defendant’s costs of the application in proceedings.4. The plaintiff is to file and serve any reply by the end of January 2023.5. The matter is listed on 21 February 2023 2.15 pm in the Registrar’s List.6. The defendant has leave to appear by audio visual link.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.