Covecorp Constructions P/L v Indigo Projects Pty Ltd - [2002] QSC 322

SUPREME COURT OF QUEENSLAND

CITATION:

Covecorp Constructions P/L v Indigo Projects Pty Ltd [2002] QSC 322

PARTIES:

COVECORP CONSTRUCTIONS PTY LTD
(plaintiff)
v
INDIGO PROJECTS PTY LTD
(defendant)

FILE NO:

S4182 of 2002

DIVISION:

Trial

PROCEEDING:

Application for Summary Judgment

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 October 2002

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2002

JUDGE:

Muir J

CATCHWORDS:

PRACTICE – SUMMARY JUDGMENT – where application for summary judgment under r 292

BUILDING AND ENGINEERING CONTRACTS – RECOVERY OF MONIES - where dispute arose between parties to a building contract - where alleged that payment certificates were not issued in accordance with contract and are therefore invalid – meaning of “moneys due” and “amounts due” – circumstances in which payment certificate may be challenged – consequences of invalidity of payment certificate

Uniform Civil Procedure Rules r 292

Hickman Co v Roberts [1913] AC 229
Holt v Cox (1994) 15 ACSR 313
Horwitz Graham Books Pty Ltd v Mid-City Centre Pty Ltd 1990) NSW Conv R 55-514
Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314
Lubenham Fidelities and Investments Co Ltd v South Pembrokeshire District Council 1986) 33 BLR 46 (CA)
Our Town FM Pty Ltd v ABT (1987) 16 FCR 465 at 479, 480

Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428
Strang Patrick Stevedoring Pty Ltd v James Patrick & Co Pty Ltd (1993) 32 NSWLR 583
WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489
Wulguru Heights Pty Ltd v Merritt Cairns Constructions Pty Ltd [1995] 2 Qd R 521

COUNSEL:

B D O’Donnell QC or the plaintiff
D A Savage SC for the defendant

SOLICITORS:

Dibbs Barker Gosling for the plaintiff
Phillips Fox for the defendant

Introduction

The plaintiff contractor, which seeks summary judgment against the defendant, on about 28 August 1998 entered into a contract (“the earthworks contract”) with the defendant proprietor under which the plaintiff agreed to carry out for the defendant earthworks for the defendant’s shopping centre development at Keperra (“the project”).

On or about 5 November, the plaintiff and the defendant entered into a further contract (“the building contract”) under which the plaintiff agreed to build the proposed shopping centre for the defendant. Disputes arose between the parties and the plaintiff claims in these proceedings moneys allegedly payable under payment claims 12 and 13, moneys in respect of delay costs and moneys in respect of variations. In the alternative, the plaintiff makes a number of claims for damages for breach of contract.

The summary judgment application is confined to the sum of $261,908 (plus GST) being an amount by which the plaintiff asserts that payment certificates 12 and 14 issued under the building contract were understated. The pleadings, in broad terms, allege that the payment certificates are invalid because they were not issued in accordance with cl 42.1 of the General Conditions of Contract. The alleged critical deficiency in each, for present…

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: [2002] QSC 322
Decision Date: 11 October 2002

CaseChat Overview and Summary

Covecorp Constructions P/L, the plaintiff, brought an action against Indigo Projects Pty Ltd, the defendant, in the Supreme Court of Victoria. The dispute centred around the validity of payment certificates issued under a building contract, with Covecorp alleging that the certificates were not issued in accordance with the terms of the contract and were therefore invalid. Covecorp sought recovery of monies they claimed were due under the contract. The legal issues before the court were whether the payment certificates were valid, and if not, what the consequences of their invalidity were.

The court considered the meaning of "moneys due" and "amounts due" in the context of the contract, and the circumstances in which a payment certificate could be challenged. The court held that the payment certificates were invalid as they did not comply with the terms of the contract. The court further found that the invalidity of the payment certificates did not automatically mean that the defendant was not entitled to payment. Instead, the court held that the defendant could still be entitled to payment if the plaintiff could not prove that the amount claimed was not due under the contract. The court noted that the invalidity of the payment certificates did not affect the underlying contractual obligations of the parties.

The court granted Covecorp's application for summary judgment on the issue of liability, finding that the invalidity of the payment certificates meant that the defendant was not entitled to payment. The court held that the defendant had failed to establish a valid defence to the claim for recovery of monies. The court did not make any orders as to the amount of damages owed by the defendant to the plaintiff, as this was to be determined at a later hearing. The defendant was ordered to pay Covecorp's costs of the application for summary judgment.

Orders