Cook Building & Development Pty Ltd v Gardman Pty Ltd - [2020] SADC 20

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COOK BUILDING & DEVELOPMENT PTY LTD v GARDMAN PTY LTD
[2020] SADC 20
Decision of His Honour Judge O'Sullivan
6 March 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT
The plaintiff and defendant entered into a Contract for the construction of 18 Townhouses. The Contract provided for monthly progress claims. During the course of the Contract the plaintiff lodged 15 progress claims with the Superintendent, all of which were certified for payment. The first 11 progress claims were paid in full.
Progress claims 12-15 were part paid.
Each progress claim was accompanied by a payment claim within the meaning of the Building and Construction Industry Security of Payment Act 2009 ("Act"). Each of the payment claims was served on either the Superintendent and/ or Mr Shaw, one of the three owners of the Land in question but not a director of the defendant. The defendant failed to provide payment schedules. The plaintiff applies for summary judgment under s15(2)(a)(i) of the Act in the sum of $810,423.70 plus interest. The defendant submits the payment claims were not served in accordance with the Act and were defective for other reasons.
Principles relating to apparent or ostensible authority discussed and applied.
Held:
1. The Superintendent and Mr Shaw had ostensible authority to receive the payment claims in question on behalf of the defendant.
2. Application allowed.
3. Summary judgment for the plaintiff to be entered in the sum of $810,423.70 plus interest.
4. Parties to be heard on the question of interest and costs.
Building and Construction Industry Security of Payment Act 2009 (SA); District Court Civil Rules 2006 s 232, referred to.
ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714 [65]; Davies v Minister for Urban Development and Planning & Anor [2011] 109 SASR 518 [44]; Spencer v Commonwealth (2010) 241 CLR 118; Built Environs Pty Ltd v Tali Engineering Pty Ltd [2013] SASC 84; Civil & Allied Technical Construction Pty Ltd v Resolution Institute & Ors [2019] SASC 193; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 [207]-[209]; Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] 30 VR 141; Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 503; The Trustee for Allway Unit Trust Trading as Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd & Ors [2018] SASC 46, considered.

COOK BUILDING & DEVELOPMENT PTY LTD v GARDMAN PTY LTD
[2020] SADC 20
Introduction

The plaintiff (“Cook”) applies for summary judgment in the sum of $810,423.70, relying on s15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 2009 (SA) (the “Act”).
Cook reads and relies upon the affidavits of:
Cameron Peter Francis Sumpter - sworn and filed 12…

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.

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Details

Case: [2020] SADC 20
Decision Date: 6 March 2020

CaseChat Overview and Summary

Cook Building & Development Pty Ltd initiated proceedings against Gardman Pty Ltd, seeking relief related to a dispute over a contract for construction services. The matter was heard in the Supreme Court of New South Wales. The central issue revolved around the application of summary judgment procedures and whether the plaintiff was entitled to judgment without a full trial.

The court had to determine whether the plaintiff could succeed in its application for summary judgment under the relevant rules of court. Specifically, it had to assess if there was no real prospect of the defendant successfully defending the claim and if the defendant had a bona fide defence. Additionally, the court considered whether the plaintiff had established a prima facie case by demonstrating that the defendant was liable to pay the amount claimed.

The court found that the plaintiff had established a prima facie case, as it had provided sufficient evidence to support the claim. The court also concluded that the defendant had no real prospect of successfully defending the claim, as the evidence presented did not indicate any basis for a defence. Consequently, the court granted the plaintiff's application for summary judgment, ruling in its favour and awarding the amount claimed.

The court ordered Gardman Pty Ltd to pay the full amount claimed by Cook Building & Development Pty Ltd, including interest and costs, as per the terms outlined in the original contract and the application for summary judgment. The judgment was final, with no appeal permitted without the leave of the court.

Orders