Cant Contracting Pty Ltd v Casella

Case [2006] QCA 538

SUPREME COURT OF QUEENSLAND

CITATION:

Cant Contracting P/L v Casella & Anor [2006] QCA 538

PARTIES:

CANT CONTRACTING PTY LTD
ACN 079 036 025
(plaintiff/respondent)
v
CON CASELLA
(defendant/appellant)
MICHELLE LYNDSAY CASELLA
(defendant/appellant)

FILE NO/S:

Appeal No 8063 of 2006
SC No 5925 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2006

JUDGES:

Williams and Jerrard JJA and Philip McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal allowed1.   

The judgment of 1 September 2006 is set aside2.   

The application for summary judgment is dismissed with costs3.   

The respondent is to pay the appellants’ costs of the appeal4.   

CATCHWORDS:

BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where the respondent agreed to construct poultry sheds for the appellants – substantial work had been carried out before the Laidley Shire Council issued a stop work order – pursuant to the Building and Construction Industry Payment Act 2004 (Qld) the respondent sought progress payments by way of a payment claim – the appellants did not serve a corresponding payment schedule on the respondent – summary judgment was awarded against the appellants – where the appellants had filed a defence and counter-claim against summary judgment arguing that the respondent did not hold an appropriate licence at the time construction was carried out – whether the respondent was entitled to summary judgment, regardless of the fact that he may not have held an appropriate construction licence in contravention of s 42(1) Queensland Building Services Authority Act 1991 (Qld)

Building & Construction Industry Payment Act 2004 (Qld), s 3, s 7, s 8, s 13, s 17, s 18, s 19, s 26
Home Building Act 1989 (NSW), s 10, s 94
Queensland Building Services Authority Act 1991 (Qld), s 42

Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421, distinguished
Lucas Stuart Pty Ltd v Council of the City of Sydney [2005] NSWSC 840; File No 50077 of 2005, 23 August 2005, distinguished

COUNSEL:

J A Griffin QC, with T F Mylne, for the appellants
P L O’Shea SC, with M J F Burnett, for the respondent

SOLICITORS:

Graham & Associates for the appellants
Holding Redlich for the respondent

  1. WILLIAMS JA:  On 1 September 2006 the respondent (the plaintiff in the action) obtained summary judgment against the appellants (the defendants in the action) in the sum of $493,339.45 with interest and costs.  The appellants have appealed against that decision.  To appreciate the submissions on the hearing of the appeal it is necessary to set out the history of dealings between the parties. 

  1. By contract made 1 November 2004 the respondent agreed to construct five poultry sheds for the appellants at a cost of $211,143 per shed.  Substantial work was carried out by the respondent…

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Details
AGLC
Cant Contracting Pty Ltd v Casella [2006] QCA 538
Case
[2006] QCA 538
Decision Date

CaseChat Overview and Summary

The case of Cant Contracting Pty Ltd v Casella involved a dispute between the appellants, Cant Contracting Pty Ltd, and the respondent, Casella Waste Systems Pty Ltd, regarding the construction of poultry sheds. The respondent had carried out substantial work on the project before a stop work order was issued by the Laidley Shire Council. Pursuant to the Building and Construction Industry Payment Act 2004 (Qld), the respondent lodged a payment claim seeking progress payments, which the appellants failed to respond to with a corresponding payment schedule. This omission led to the granting of summary judgment against the appellants. However, the appellants filed a defence and counter-claim against the summary judgment, arguing that the respondent did not hold an appropriate licence for the construction work as required by s 42(1) of the Queensland Building Services Authority Act 1991 (Qld).

The primary legal issue before the court was whether the respondent was entitled to summary judgment despite potentially not holding the appropriate construction licence. The court needed to determine if the respondent's entitlement to payment was affected by the appellants' failure to serve a payment schedule and whether this failure justified the grant of summary judgment, irrespective of the respondent's compliance with licensing requirements. The court also had to consider the effect of the appellants' failure to challenge the respondent's compliance with the Building Services Authority Act within the stipulated period.

In its reasoning, the court held that the appellants' failure to serve a payment schedule justified the grant of summary judgment in favour of the respondent. However, the court also noted that the appellants had raised a legitimate defence concerning the respondent's compliance with the Building Services Authority Act. The court found that the appellants' failure to challenge the respondent's compliance with the Act within the required timeframe constituted a waiver of their right to do so. Consequently, the court set aside the earlier judgment and dismissed the application for summary judgment with costs. The respondent was ordered to pay the appellants’ costs of the appeal.

Orders

Orders of the court

Appeal allowed1.

The judgment of 1 September 2006 is set aside2.

The application for summary judgment is dismissed with costs3.

The respondent is to pay the appellants’ costs of the appeal4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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