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 2005DIVISION:
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 madeORDER:
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 42Brodyn 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, distinguishedCOUNSEL:
J A Griffin QC, with T F Mylne, for the appellants
P L O’Shea SC, with M J F Burnett, for the respondentSOLICITORS:
Graham & Associates for the appellants
Holding Redlich for the respondent
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.
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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- Cant Contracting Pty Ltd v Casella [2006] QCA 538
- Case
- [2006] QCA 538
- Decision Date
CaseChat Overview and Summary
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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