Dalefield Pty Ltd v Pro-Civil Pty Ltd - [2000] QSC 424

SUPREME COURT OF QUEENSLAND

CITATION: Dalefield Pty Ltd v Pro-Civil Pty Ltd [2000] QSC 424

PARTIES: DALEFIELD PTY LTD
(applicant)
v
PRO-CIVIL PTY LTD
(respondent)

FILE NO/S: S 6892 of 2000

DIVISION: Trial

PROCEEDING: Application to set aside a statutory demand

DELIVERED ON: 13 October 2000

DELIVERED AT: Brisbane

HEARING DATE: 25 August 2000

JUDGE: Douglas J

ORDER: Application dismissed with costs to be assessed on the ordinary basis.

CATCHWORDS:
COPRORATIONS – WINDING UP – GROUNDS FOR WINDING UP – INSOLVENCY – STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND – GENUINE DISPUTE AS TO INDEBTEDNESS – entitlement to payment of progress claim certified pursuant to contract for concrete roadworks.

Corporations Law, s 459G

Chadwick Industries (South Coast) Pty Ltd v Condensing Vapourisers Pty Ltd (1994) 13 ACSR 37
Eota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd [1995] 1 QdR 521

Re Concrete Constructions Group Pty Ltd [1997] 1 QdR 6

COUNSEL: P E Hack for applicant
P J Roney for respondent

SOLICITORS: Jeffrey Cuddihy & Joyce Solicitors for applicant
Bowdens Lawyers for respondent

DOUGLAS J: This is an application pursuant to s 459G of the Corporations Law to set aside a statutory demand for $43,720.30 served by the respondent on the applicant on 24 July 2000.

A relevant chronology is as follows:

13.04.99 Contract adopting AS 2124/92 entered for concrete roadworks.

28.09.99 Contract works completed and on 12 months maintenance.

29.09.99 Superintendent lists rectification works required for practical completion effective 28.09.

27.10.99 Superintendent letter to respondent dealing with minor outstanding items of works and reminding it it remains responsible for defects during maintenance period and of retention amount of $18,373 to cover this.

19.11.99 Works go on maintenance with Local Authority.

15.12.99 Superintendent letter advising principal that the rectification works required in its letter of 6.12 had been completed.

20.03.00 Respondent issues notice of dispute under clause 47.2 arising out of refusal to pay balance contract sum, nett of retention and interest in an attempt to bring matter to a conclusion.

14.04.00 Applicant’s response to the dispute notice, listing objections to items in payment notices 3, 4, 5, 6, 7 and 8 and contesting the soundness of concrete pads.

28.04.00 Superintendent replies to applicant’s response and makes his determination that the progress certificates represent the true value of the work, that they were carried out satisfactorily. Suggesting that the principal still disagrees on payment, they would convene a meeting ASAP.

..06.00 Applicant obtains engineer’s report.

10.07.00 Superintendent’s determination of the dispute and response that despite minor defects, the contractor is due all contract sum less retention until completion of the defects liability period plus interest .

12.07.00 Statutory demand issued $43,720 and interest $3,607.82.

13.07.00
(a) Applicant’s solicitors write to superintendent, dissatisfied with his decision of 10.7 and refers the matter to conference under clause 37.

(b) Respondent’s solicitors are sent engineer’s report by applicant, referring to notwithstanding the superintendent’s decision the removal.

17.07.00 Superintendent…

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: [2000] QSC 424
Decision Date: 13 October 2000

CaseChat Overview and Summary

The case of Dalefield Pty Ltd v Pro-Civil Pty Ltd was heard in the Supreme Court of New South Wales, where Dalefield sought to set aside a statutory demand issued by Pro-Civil. The dispute centred around the entitlement to payment of a progress claim certified under a contract for concrete roadworks. Pro-Civil claimed that Dalefield owed them money, while Dalefield contested this, asserting that there was a genuine dispute regarding the debt. The primary legal issue before the court was whether Dalefield had a genuine dispute as to the debt claimed by Pro-Civil, which would entitle Dalefield to set aside the statutory demand.

The court considered the nature and basis of the debt claimed by Pro-Civil. Pro-Civil had issued a statutory demand for payment of the certified progress claim, which Dalefield sought to contest. The court examined the evidence and arguments presented by both parties regarding the progress claim and whether Dalefield had a reasonable and bona fide dispute about the amount owed. The court also considered the contractual obligations and the specific terms under which the progress claim was certified.

In its reasoning, the court found that Dalefield's arguments did not establish a genuine dispute as to the debt. The court was not persuaded that Dalefield had a reasonable basis for disputing the amount claimed by Pro-Civil. The evidence presented did not sufficiently demonstrate that there was a substantial question to be tried that would justify setting aside the statutory demand. Consequently, the application to set aside the demand was dismissed, and costs were awarded to Pro-Civil to be assessed on the ordinary basis.

Orders

Orders of the court

Application dismissed with costs to be assessed on the ordinary basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dalefield Pty Ltd v Pro-Civil Pty Ltd [2000] QSC 424
PARTIES:	DALEFIELD PTY LTD (applicant) v PRO-CIVIL PTY LTD (respondent)
FILE NO/S:	S 6892 of 2000
DIVISION:	Trial
PROCEEDING:	Application to set aside a statutory demand
DELIVERED ON:	13 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2000
JUDGE:	Douglas J
ORDER:	Application dismissed with costs to be assessed on the ordinary basis.
CATCHWORDS:	COPRORATIONS – WINDING UP – GROUNDS FOR WINDING UP – INSOLVENCY – STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND – GENUINE DISPUTE AS TO INDEBTEDNESS – entitlement to payment of progress claim certified pursuant to contract for concrete roadworks. Corporations Law, s 459G Chadwick Industries (South Coast) Pty Ltd v Condensing Vapourisers Pty Ltd (1994) 13 ACSR 37 Eota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd [1995] 1 QdR 521 Re Concrete Constructions Group Pty Ltd [1997] 1 QdR 6
COUNSEL:	P E Hack for applicant P J Roney for respondent
SOLICITORS:	Jeffrey Cuddihy & Joyce Solicitors for applicant Bowdens Lawyers for respondent

13.04.99	Contract adopting AS 2124/92 entered for concrete roadworks.
28.09.99	Contract works completed and on 12 months maintenance.
29.09.99	Superintendent lists rectification works required for practical completion effective 28.09.
27.10.99	Superintendent letter to respondent dealing with minor outstanding items of works and reminding it it remains responsible for defects during maintenance period and of retention amount of $18,373 to cover this.
19.11.99	Works go on maintenance with Local Authority.
15.12.99	Superintendent letter advising principal that the rectification works required in its letter of 6.12 had been completed.
20.03.00	Respondent issues notice of dispute under clause 47.2 arising out of refusal to pay balance contract sum, nett of retention and interest in an attempt to bring matter to a conclusion.
14.04.00	Applicant’s response to the dispute notice, listing objections to items in payment notices 3, 4, 5, 6, 7 and 8 and contesting the soundness of concrete pads.
28.04.00	Superintendent replies to applicant’s response and makes his determination that the progress certificates represent the true value of the work, that they were carried out satisfactorily. Suggesting that the principal still disagrees on payment, they would convene a meeting ASAP.
..06.00	Applicant obtains engineer’s report.
10.07.00	Superintendent’s determination of the dispute and response that despite minor defects, the contractor is due all contract sum less retention until completion of the defects liability period plus interest .
12.07.00	Statutory demand issued $43,720 and interest $3,607.82.
13.07.00	(a) Applicant’s solicitors write to superintendent, dissatisfied with his decision of 10.7 and refers the matter to conference under clause 37. (b) Respondent’s solicitors are sent engineer’s report by applicant, referring to notwithstanding the superintendent’s decision the removal.
17.07.00	Superintendent…