CKP Constructions Pty Ltd v Gabba Holdings Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

CKP Constructions Pty Ltd v Gabba Holdings Pty Ltd [2016] QDC 356

PARTIES:

CKP CONSTRUCTIONS PTY LTD
(applicant)

v

GABBA HOLDINGS PTY LTD
(first respondent)

and

SIMON ASHLEIGH McGUIRE
(second respondent)

and

AURORA PACIFIC PROJECTS PTY LTD
(third respondent)

FILE NO/S:

D4055/2016

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2016

JUDGE:

McGill SC DCJ

ORDER:

Judgment that the first respondent pay the applicant $701,321.17, including interest of $32,331.45. 

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Recovery of monies – whether progress claim validly made, and when – whether principal entitled to withhold payment under the contract. 

BUILDING AND ENGINEERING CONTRACTS – Payment claim under statute – whether payment schedule served within time – effect of email to employee – whether employee agent to receive communications – when “served”.

Building and Construction Industry Payment Act 2004 s 103.

Electronic Transactions (Queensland) Act 2001 s 24(1)(a).

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215 – considered.
Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576 – considered.
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30 – considered.
Daysea Pty Ltd v Watpac Aust Pty Ltd [2001] QCA 49 – cited.
John Holland Pty Ltd v Coastal Dredging and Construction Pty Ltd [2012] 2 Qd R 435 – considered.
Kane Constructions Pty Ltd v Sopov [2005] VSC 237, (2006) 22 BCL 92 – considered.
Reed Constructions (Qld) Pty Ltd v Martinek Holdings Pty Ltd [2009] QSC 345 – not followed.
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd [2016] HCA 52 – considered.
Tenix Alliance Pty Ltd v Magaldi Power Pty Ltd [2010] QSC 7 – cited.

COUNSEL:

B E Codd for the applicant

M S Trim for the first respondent

SOLICITORS:

Batch Mewing Lawyers for the applicant

McCullough Robertson Lawyers for the first respondent

1. By this application the applicant seeks payment of money said to be owing under a contract, specifically, under a progress payment clause in a building contract, or in the alternative, by statute pursuant to s 19 of the Building and Construction Industry Payment Act 2004 (“the Act”).  There was little factual dispute between the parties, although there was some cross-examination on two of the affidavits read before me, and overall I consider the matter was properly brought by originating application, particularly in the context of a progress payment under a building contract.

1. Both claims are resisted by the first respondent, the other party of the contract, the contractual claim on the basis that the amount payable is limited by the amount certified by the superintendent, and that amount is not payable, pursuant to another clause in the contract, because the applicant has not shown that subcontractors and others have been paid amounts owing for work done, or as the case may be.  The claim under the Act is resisted on the…