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CMF Projects Pty Ltd v Riggall

CMF Projects Pty Ltd v Riggall

Case [2014] QDC 90 24 April 2014

Civil Litigation & Procedure

Contract Law

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DISTRICT COURT OF QUEENSLAND

CITATION:

CMF Projects P/L v Riggall & Anor [2014] QDC 90

PARTIES:

CMF PROJECTS PTY LTD (ACN 114 539 212)

Respondent/plaintiff

v

BRIAN NOEL MANSON RIGGALL

applicant/first defendant

and

JANE REIMAN RIGGALL

applicant/second defendant

FILE NO/S:

BD4085 of 2013

DIVISION:

Civil Applications

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

24 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2014, written submissions to 16 April 2014

JUDGE:

Andrews SC DCJ

ORDER:

1. That the amended statement of claim and paragraphs 4(d), 10 and 11 of the reply and 1, 3(b) and 4 of the answer to the amended counter-claim be struck out.

2. That the plaintiff pay the defendants’ costs of the application on the indemnity basis.

3. That with respect to the order for costs the plaintiff have liberty within seven (7) days to make submissions on notice to the defendants seeking to set aside the order for costs and seeking an alternative order for costs.

CATCHWORDS:

BUILDING ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PAYMENT – DOMESTIC BUILDING CONTRACTS ACT 2000 ss 55(2), 55(3), 55(4) – effect on other remedies – where building contractor did building work pursuant to cost plus contract – where contract a regulated contract – where contract did not contain a fair and reasonable estimate by the building contractor of the amount which the building contractor was likely to receive under the contract as required by s 55(3) – whether builder may recover on quantum meruit basis from District Court

ESTOPPEL – BY REPRESENTATION – EFFECT OF STATUTORY PROHIBITION AGAINST CONTRACTING OUT – where builder alternatively claims that owners estopped from disputing that builder’s quantum meruit claim may be brought in the District Court – whether s 55 confers rights which it is in the public interest to maintain – where s 93(2) prohibits contracting out of the Act – whether s 93(2) relevant to whether owner estopped from disputing builder’s quantum meruit claim – whether builder confined to claim in tribunal under s 55(4)

PRACTICE AND PROCEDURE – Pleadings – whether to strike out statement of claim and parts of reply and answer – where plaintiff seeks to allege that monies claimed are a debt due upon a fully executed contract rather than money payable pursuant to contract – whether plaintiff obliged to plead that contract fully executed or whether defendant obliged to plead that the contract was not fully executed – UCPR r 153 – whether the allegation that contract was fully executed is a condition precedent for the case of the plaintiff which may be implied in the plaintiff’s pleading

PRECEDENTS – stare decisis – whether statement in a judgment of the Supreme Court was obiter dictum or ratio decidendi – where obiter dictum on interpretation of statute –whether appropriate to follow the obiter dictum without reconsidering the point

Domestic Building Contracts Act 2000 ss 3, 30, 55(2), 55(3), 55(4), 84 and 93

Property Agents and Motor Dealers Act

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 CMF Projects Pty Ltd v Riggall

Details

AGLC: CMF Projects Pty Ltd v Riggall [2014] QDC 90
Case: [2014] QDC 90
Decision Date: 24 April 2014

CaseChat Overview and Summary

In the case of CMF Projects Pty Ltd v Riggall, the plaintiff, a building contractor, sought to recover payments from the defendants, who were the owners of a property on which the plaintiff had carried out building work. The dispute arose from a cost-plus contract for domestic building work and was subject to the statutory regulation of the Domestic Building Contracts Act 2000 (Qld). The key issue before the court was whether the contractor could recover on a quantum meruit basis from the District Court due to the absence of a fair and reasonable estimate in the contract, as required by s 55(3) of the Act. Additionally, the court considered whether the owner was estopped from disputing the contractor's quantum meruit claim due to the statutory prohibition against contracting out of the Act.

The court held that the contractor could not recover on a quantum meruit basis from the District Court, as the absence of a fair and reasonable estimate in the contract precluded such a recovery. The court found that the statutory framework of the Act provided a comprehensive scheme for the resolution of disputes, including through the Queensland Civil and Administrative Tribunal, and that it was in the public interest to maintain the rights conferred by s 55. The court also determined that the prohibition against contracting out of the Act did not estop the owner from disputing the contractor's quantum meruit claim, as the statutory rights were not so fundamental as to preclude estoppel. Regarding the pleadings, the court struck out certain parts of the contractor's pleadings for failing to allege that the contract was fully executed, as required by UCPR r 153, and ordered the contractor to pay the owners' costs of the application on the indemnity basis.

The court's final orders included the striking out of specific paragraphs of the contractor's pleadings and the awarding of costs to the owners. The contractor was given leave to seek to set aside the order for costs and to apply for an alternative order within seven days. This decision highlights the importance of strict compliance with statutory requirements in building contracts and the consequences of failing to do so, as well as the limited scope for estoppel in the context of statutory rights.

Orders

Orders of the court

1. That the amended statement of claim and paragraphs 4(d), 10 and 11 of the reply and 1, 3(b) and 4 of the answer to the amended counter-claim be struck out.

2. That the plaintiff pay the defendants’ costs of the application on the indemnity basis.

3. That with respect to the order for costs the plaintiff have liberty within seven (7) days to make submissions on notice to the defendants seeking to set aside the order for costs and seeking an alternative order for costs.

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

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

CMF Projects Pty Ltd v Riggall [2014] QDC 90

Most Recent Citation

Thompson Residential Pty Ltd v Tran [2014] QDC 156

Cases Citing This Decision

Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Citation 1 (Para 2)

…[2014] QDC 90.…
Foley v Steve Bagnall Homes Pty Ltd [2018] QCAT 458
Citation 2 (Para 14)

…obtain properly documented variation agreements, a remedy available only from the tribunal and to the exclusion of other rights of recovery. [31][2014] QDC 90. On appeal, this point was not argued.…
Mt Cotton Constructions Pty Ltd v Greer [2017] QCAT 11
Citation 3 (Para 6)

…n properly documented variation agreements, a remedy available only from the tribunal and to the exclusion of other rights of recovery…. [16] [15][2014] QDC 90. [16]Ibid [23].…
Thompson Residential Pty Ltd v Tran [2014] QDC 156
Citation 4 (Para 1)

…g under s 55 of the Act, and concluded that that section did exclude any restitutionary claim except under the Act: CMF Projects P/L v Riggall & Anor [2014] QDC 90. In arriving at that conclusion, he dealt with a submission seeking to distinguish between s 55 and s 84 of the Act, for which purpose he considered…

See all citing cases →

Cases Cited

Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357
Citation 1 (Para 1)

…ied by an estoppel. [11] Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1015-1016 and Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2008] QCA 357; [2009] 1 Qd R 589 at [50]. [12] Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 216 approving Maritime Electric Co v General Dairies Ltd [1937] AC 6…
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Citation 2 (Para 1)

…ould take a consistent approach with the remedy created at s 55(4) by making that remedy the only remedy available to the builder. [8](2003) 211 CLR 476 [9]Set out above. [10]Of a domestic building contract which is a regulated contract…
Telstra Corporation Ltd v Treloar [2000] FCA 1170
Citation 3

…Ltd (No 1) [2008] QCA 357; [2009] 1 Qd R 589 Telstra Corp Ltd v Treloar (2000) 102 FCR 595; [2000] FCA 1170 COUNSEL: G I Thomson for the applicant/defendants G Coveney for the respondent plaintiff SOLICITORS: H W L Ebbsworth for the applicant/defendants Arrow Law for the respondent/plaintiff…
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784
Citation 4

…Dairies Ltd [1937] AC 610 Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2003) 176 ALR 46 Neumann Contractors Pty Ltd v Traspunt No. 5 Pty Ltd [2011] 2 Qd R 114 Pavey & Matthews Pty Ltd (1987) 162 CLR 221 Plaintiff S157/2000 v Commonwealth of Australia (2003) 211 CLR 476 Sultan…
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5
Citation 5 (Para 1)

…rove an intention that the work be paid for and to disprove that there was no intention to perform work gratuitously.[4] [4] Pavey & Matthews Pty Ltd (1987) 162 CLR 221 at 257.5 per Deane J.…
[1937] AC 610 [1937] AC 610
Citation 6 (Para 1)

…08] QCA 357; [2009] 1 Qd R 589 at [50]. [12] Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 216 approving Maritime Electric Co v General Dairies Ltd [1937] AC 610 at 620 and referred to with approval in Sultana Investments Pty Ltd op cit at [51].…
[1964] AC 993 [1964] AC 993
Citation 7 (Para 1)

…question to ask whether an obligation imposed for the public benefit will be nullified by an estoppel. [11] Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1015-1016 and Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2008] QCA 357; [2009] 1 Qd R 589 at [50]. [12] Day Ford Pty Ltd v Sciacca [199…
[1984] 1 WLR 251 [1984] 1 WLR 251
Citation 8 (Para 1)

…greater protection to the builder than it could obtain from a separate contract. That proposition was put more eloquently in Keen v Holland [1984] 1 WLR 251 at 261 C-F which was applied in Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1987) 73 ALR 373 at 378 – 9 by Pincus J as his Honour then was and both…

Legislation Cited

Domestic Building Contracts Act 2000 (Qld) 3, 30, 55(2), 55(3), 55(4), 84, 93
8 mentions (from Para 1)
Building and Construction Industry Payments Act 2004 (Qld)
1 mention (from Para 1)
Property Agents and Motor Dealers Act 2000 (Qld)
1 mention (from Para 1)
Queensland Building Construction and Commission Act 1991 (Qld)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld) 171
1 mention

CITATION:	CMF Projects P/L v Riggall & Anor [2014] QDC 90
PARTIES:	CMF PROJECTS PTY LTD (ACN 114 539 212) Respondent/plaintiff v BRIAN NOEL MANSON RIGGALL applicant/first defendant and JANE REIMAN RIGGALL applicant/second defendant
FILE NO/S:	BD4085 of 2013
DIVISION:	Civil Applications
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	24 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2014, written submissions to 16 April 2014
JUDGE:	Andrews SC DCJ
ORDER:	1. That the amended statement of claim and paragraphs 4(d), 10 and 11 of the reply and 1, 3(b) and 4 of the answer to the amended counter-claim be struck out. 2. That the plaintiff pay the defendants’ costs of the application on the indemnity basis. 3. That with respect to the order for costs the plaintiff have liberty within seven (7) days to make submissions on notice to the defendants seeking to set aside the order for costs and seeking an alternative order for costs.
CATCHWORDS:	BUILDING ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PAYMENT – DOMESTIC BUILDING CONTRACTS ACT 2000 ss 55(2), 55(3), 55(4) – effect on other remedies – where building contractor did building work pursuant to cost plus contract – where contract a regulated contract – where contract did not contain a fair and reasonable estimate by the building contractor of the amount which the building contractor was likely to receive under the contract as required by s 55(3) – whether builder may recover on quantum meruit basis from District Court ESTOPPEL – BY REPRESENTATION – EFFECT OF STATUTORY PROHIBITION AGAINST CONTRACTING OUT – where builder alternatively claims that owners estopped from disputing that builder’s quantum meruit claim may be brought in the District Court – whether s 55 confers rights which it is in the public interest to maintain – where s 93(2) prohibits contracting out of the Act – whether s 93(2) relevant to whether owner estopped from disputing builder’s quantum meruit claim – whether builder confined to claim in tribunal under s 55(4) PRACTICE AND PROCEDURE – Pleadings – whether to strike out statement of claim and parts of reply and answer – where plaintiff seeks to allege that monies claimed are a debt due upon a fully executed contract rather than money payable pursuant to contract – whether plaintiff obliged to plead that contract fully executed or whether defendant obliged to plead that the contract was not fully executed – UCPR r 153 – whether the allegation that contract was fully executed is a condition precedent for the case of the plaintiff which may be implied in the plaintiff’s pleading PRECEDENTS – stare decisis – whether statement in a judgment of the Supreme Court was obiter dictum or ratio decidendi – where obiter dictum on interpretation of statute –whether appropriate to follow the obiter dictum without reconsidering the point Domestic Building Contracts Act 2000 ss 3, 30, 55(2), 55(3), 55(4), 84 and 93 Property Agents and Motor Dealers Act