Construct Assist Pty Ltd v PDMS Group Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Construct Assist Pty Ltd v PDMS Group Pty Ltd [2008] QDC 303

PARTIES:

CONSTRUCT ASSIST PTY LTD

Applicant

v

PDMS GROUP PTY LTD

Respondent

FILE NO/S:

BD305/08

DIVISION:

Civil

PROCEEDING:

Application for summary judgment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 December 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2008

JUDGE:

Tutt DCJ

ORDER:

1.    Judgment for the applicant against the respondent in the sum of $107,062.56.

2.    Interest on judgment sum as allowed by law.

3.    The respondent to pay the applicant’s costs of and incidental to the application to be agreed or assessed on a standard basis.

4.    Parties to have liberty to apply.

CATCHWORDS:

SUMMARY JUDGMENT – claim under a “construction contract” – Building and Construction Industry Payments Act 2004 – payment claim served by claimant by pre-paid post to respondent’s principal place of business – no payment schedule served by respondent in reply – whether respondent entitled to resist summary judgment application

Uniform Civil Procedure Rules 1999 rr 292, 293

Building and Construction Industry Payments Act 2004 ss 3, 7, 12, 17, 18, 19, 100

Brodyn Pty Ltd t/as Time Cost and Quality v Davenport and Anor [2004] NSWCA 394

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227

Nepean Engineering Pty Ltd v Total Process Services Pty Ltd(In Liq) [2005] NSWCA 409

Swain v Hillman [2001] 1 All ER 91

COUNSEL:

P W Telford for the applicant

C F O’Meara for the respondent

SOLICITORS:

BCI Duells Lawyers for the applicant

Michael O’Brien Lawyers for the respondent

Introduction:

1. This is an application by the plaintiff (“applicant”) for summary judgment to be entered against the defendant (“respondent”) pursuant to r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The proceeding before the court is an action in debt by the applicant to recover from the respondent the sum of $107,061.50 (inclusive of GST) pursuant to the provisions of s 19 of the Building and Construction Industry Payments Act 2004 (“BCIPA”).

Background facts:

1. The applicant is a licensed builder and carries on business as a construction manager.  At the relevant time the respondent was undertaking a townhouse development at Deception Bay, Queensland.

1. The applicant’s claim is that on or about 27 September 2006 the applicant and respondent entered into an oral agreement whereby:

(a)         the applicant would provide construction management services to the respondent for the duration of the development (160 working days);

(b)         the respondent would pay to the applicant:

(i)          a fixed fee of $40,000 (plus GST); and

(ii)         an amount equal to 40% of any saving achieved by the respondent consequent upon the applicant’s input into the tender process (plus GST).[1]

[1]Applicant’s Statement of Claim filed 11 February 2008 at paragraph 2; Applicant’s written submissions at paragraph 25.

1. It is agreed that the respondent has paid the plaintiff the sum of $40,000.00 plus GST pursuant to the terms of the contract but the dispute between the parties is in…