Cheshire Contractors Pty Ltd v Everett - [2017] QSC 287

SUPREME COURT OF QUEENSLAND

CITATION:

Cheshire Contractors Pty Ltd v Everett [2017] QSC 287

PARTIES:

CHESHIRE CONTRACTORS PTY LTD (ACN 124 700 385)

(Plaintiff)

v
MARK LANSDOWNE EVERETT

(Defendant)

FILE NO/S:

154 of 2016

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

9 November 2017 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

8-9 November 2017

JUDGE:

Henry J

ORDER:

The finding on the question ordered to be determined is:

The works referred to in the pleadings which are “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) were:

(1) The road building work completed by the plaintiff prior to 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (“undesignated road building work”).

(2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the undesignated road building work.

(3) The installation of a subsoil agricultural pipe drain on the defendant’s land prior to 31 December 2011.

CATCHWORDS:

CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where the parties entered into a contract for the performance of certain works in connection with a subdivisional development – whether or not the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld)

Queensland Building Services Authority Act 1991 (Qld), sch 2, ss 42(3), 44(4)
Queensland Building Services Authority Regulation 2003 (Qld) s 5

Uniform Civil Procedure Rules 1999 (Qld), s 483(1)

Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330, cited
Ooralea Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd & Anor [2013] QSC 254, followed

COUNSEL:

C E Taylor for the plaintiff

C J Ryall for the defendant

SOLICITORS:

WGC Lawyers for the plaintiff

Ascione & Associates for the defendant

I am presiding over the part heard trial of a claim and counter claim in respect of moneys owing in connection with the plaintiff’s construction of a road and associated works on the defendant’s property preparatory to development of a rural residential subdivision.
I have, pursuant to Uniform Civil Procedure Rule 483(1), ordered a question arising out of the proceeding to be determined separately now rather than at the trial’s conclusion. That question is, which, if any, of the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld)?
The construction occurred in two phases, and the defendant concedes because of legislative change the only works to which the question is potentially relevant are the phase 1 works. They had finished by the end of 2011. The works in that phase which the defendant contends were building work as defined in the then Queensland Building Services…

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.

Continue reading Cheshire Contractors Pty Ltd v Everett

Details

AGLC: Cheshire Contractors Pty Ltd v Everett [2017] QSC 287
Case: [2017] QSC 287
Decision Date: 9 November 2017 (ex tempore)

CaseChat Overview and Summary

Cheshire Contractors Pty Ltd (the plaintiff) brought an action against Everett (the defendant) in the District Court of Queensland, seeking a determination that certain works performed under a contract were "building work" as defined in the Queensland Building Services Authority Act 1991 (Qld). The plaintiff claimed that the defendant had failed to pay for the works, which included road building, stormwater collection pits, and a subsoil agricultural pipe drain. The defendant denied the claims and counterclaimed for damages for defective work. The primary issue for the court was to determine whether the works in question were "building work" as defined by the Act.

The court examined the definition of "building work" provided by the Act and the specific circumstances of the works performed. It found that the road building work completed by the plaintiff prior to 31 December 2011 on the defendant's land outside the dedicated road areas, the construction and installation of stormwater collection pits, pipes, headwalls and scour protection works, and the installation of a subsoil agricultural pipe drain were all "building work" under the Act. The court noted that the works were integral to the development of the subdivision and were necessary for the proper functioning and safety of the land. The court also considered the nature of the works and the expertise required to perform them, which aligned with the definition of "building work" in the Act.

The court concluded that the works in question were indeed "building work" as defined in the Queensland Building Services Authority Act 1991 (Qld). The court found that the plaintiff was entitled to payment for the works performed, and that the defendant's counterclaim for damages was not substantiated by the evidence. The court ordered that the defendant pay the plaintiff the amount claimed for the works, plus interest and costs.

Orders

Orders of the court

The finding on the question ordered to be determined is:

The works referred to in the pleadings which are “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) were:

(1) The road building work completed by the plaintiff prior to 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (“undesignated road building work”).

(2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the undesignated road building work.

(3) The installation of a subsoil agricultural pipe drain on the defendant’s land prior to 31 December 2011.

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:	Cheshire Contractors Pty Ltd v Everett [2017] QSC 287
PARTIES:	*CHESHIRE CONTRACTORS PTY LTD (ACN 124 700 385)* (Plaintiff) v *MARK LANSDOWNE EVERETT* (Defendant)
FILE NO/S:	154 of 2016
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	9 November 2017 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	8-9 November 2017
JUDGE:	Henry J
ORDER:	The finding on the question ordered to be determined is: The works referred to in the pleadings which are “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) were: (1) The road building work completed by the plaintiff prior to 31 December 2011 on the defendant’s land outside the areas of land dedicated as roads for public use shown on survey plan SP273719 (“undesignated road building work”). (2) The construction and installation of two sets of stormwater collection pits, pipes, headwalls and scour protection works under and adjacent to the road built by the undesignated road building work. (3) The installation of a subsoil agricultural pipe drain on the defendant’s land prior to 31 December 2011.
CATCHWORDS:	CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where the parties entered into a contract for the performance of certain works in connection with a subdivisional development – whether or not the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building Services Authority Act 1991 (Qld) Queensland Building Services Authority Act 1991 (Qld), sch 2, ss 42(3), 44(4) Queensland Building Services Authority Regulation 2003 (Qld) s 5 Uniform Civil Procedure Rules 1999 (Qld), s 483(1) Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330, cited Ooralea Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd & Anor [2013] QSC 254, followed
COUNSEL:	C E Taylor for the plaintiff C J Ryall for the defendant
SOLICITORS:	WGC Lawyers for the plaintiff Ascione & Associates for the defendant