Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (St) Pty Ltd (No 2)

The case of Built Qld Pty Ltd v Pro-Invest Australian Hospitality Opportunity (St) Pty Ltd (No 2) concerns the recoverability of interest on a retained security amount following a dispute over a performance bond in the context of a construction contract. The matter was heard in the Queensland Land Court. The plaintiff, Built Qld Pty Ltd, sought interest on the remaining security amount from the defendant, Pro-Invest Australian Hospitality Opportunity (St) Pty Ltd, which had been paid to the plaintiff in lieu of the defendant calling on the performance bond. The plaintiff claimed the interest pursuant to section 67P of the Queensland Building and Construction Commission Act 1991 (QBCC Act) or under the terms of the contract. The defendant argued that neither the statutory penalty rate nor the contractual interest rate applied, and that the plaintiff had not suffered any financial loss such as financing fees or other costs.

The court had to determine whether the plaintiff was entitled to interest on the retained security amount. The court noted that while the plaintiff's argument had some merit in principle, the claim was not straightforwardly a contractual claim but rather seemed to be framed as a claim in restitution. Given this, the court did not find it necessary to conclusively determine whether section 67P of the QBCC Act or contractual interest applied. However, the court acknowledged that the defendant had benefited from the sum of $91,757.29 since 9 May 2019, and therefore, ordered interest on that sum pursuant to section 58 of the Civil Proceedings Act 2011 (Qld). The court applied the agreed rate of 10 per cent interest for unpaid amounts, which amounted to $22,801.98 as at 1 November 2021, with instructions to update the interest calculations to the date of the final judgment.

The final orders of the court required the parties to prepare a draft order containing the final judgment, including updated interest calculations to the date of the draft order, and to submit it to the court's Associate. Additionally, the parties were to confer and agree on directions for the provision of further submissions in respect of costs if they could not agree on the appropriate costs order.