Community Development Pty Ltd v Engwirda Construction Co

[1969] HCA 47

HIGH COURT OF AUSTRALIA

Barwick C.J. , Kitto, Taylor, Windeyer and Owen JJ. (The RIGHT HONOURABLE MR. JUSTICE TAYLOR died before delivery of judgment in this case.)

COMMUNITY DEVELOPMENT PTY. LTD. v. ENGWIRDA CONSTRUCTION CO.

(1969) 120 CLR 455

10 October 1969

Arbitration—Companies

Arbitration—Building and engineering contract—Scott v. Avery clause—Arbitration clause precluded any action upon any dispute or difference arising under the contract—Building owner a company—Contractor's petition to wind up building owner—Ground of inability to pay debts—Whether petition debarred by arbitration clause. Companies—Winding up by Court—Petition—Contingent creditor—Building contract—Arbitration clause—Arbitration not held—Petitioner claimed company liable under contract to pay upon completion of work to architect's or arbitrator's satisfaction—Whether contingent creditor—The Companies Acts, 1961 to 1964 (Q.), s. 221.

Decisions

October 10.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Kitto. The expression "contingent creditor" as found in s. 221 of The Companies Acts, 1961 to 1964, of the State of Queensland has raised considerable difficulties in my mind but, after some fluctuation, I have reached the same conclusion as that expressed by my brother Kitto. I am satisfied to agree with his reasons for reaching that conclusion and would add nothing further on my own account. (at p457)

KITTO J. The respondent presented a petition to the Supreme Court of Queensland under s. 221 of The Companies Acts, 1961 to 1964 (Q.), for the winding up of the appellant by the Court. The section empowers the Court to make a winding-up order on the petition of (inter alios) "any creditor, including a contingent or prospective creditor, of the company". (at p457)

2. The respondent petitioned as a creditor or contingent creditor of the appellant in an amount not less than $28,000 in respect of work done by the respondent in the construction of a block of home units upon land owned by the appellant; and in support of its claim to have the asserted locus standi it proved that a contract for the construction of the home units had been made between itself and the appellant containing a Scott v. Avery clause which provided for arbitration upon any dispute or difference as to any matter arising under the contract, including the withholding by the architect of any certificate to which the respondent might claim to be entitled or the proper amount of any certificate, and which provided further that neither party should be entitled to commence or maintain any action upon any such dispute or difference until such matter should have been referred or determined as therein provided, and then only for the amount of the relief to which the award should find either party to be entitled. (at p458)

3. The contract price was $146,596.15, but the respondent asserted that extras had increased the price to $159,731.87 and that the work has been carried to practical completion. Progress certificates for amounts totalling $133,622.28 had been issued by the architect and under these…