Denbrook Constructions Pty Ltd v CBO Developments Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION: 

Denbrook Constructions Pty Ltd v CBO Developments Pty Ltd [2021] QDC 325

PARTIES: 

DENBROOK CONSTRUCTIONS PTY LTD ACN 109 582 122
(Plaintiff)

v

CBO DEVELOPMENTS PTY LTD ACN 628 135 768
(Defendant)

FILE NO:

823/21

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

District Court at Brisbane

DELIVERED ON:

14 December 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

13 December 2021

JUDGE:

Porter QC DCJ

ORDER:

1.   The application filed 6 December 2021 be dismissed;

2.   The matter be placed on the Commercial List; and

3.   The costs of the application be the Defendant’s costs in the proceedings.

LEGISLATION:

Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss. 61, 67, 68, 69, 75, 100

Uniform Civil Procedure Rules 1999 (Qld), r. 292

CASES:

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QCA 223

Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391

KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd [2019] QSC 178

T & M Buckley P/L v 57 Moss Road P/L [2010] QCA 381

COUNSEL:

M. Steele for the plaintiff

W. Thomas for the defendants

SOLICITORS:

Rose Litigation Lawyers for the plaintiff

ABKJ Lawyers for the defendants    

1. The plaintiff (Denbrook) sues the defendant (CBO) for summary judgment on its claim based on a payment claim delivered purportedly under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIFA). The document relied upon is styled as ‘Payment Claim 26’. Denbrook pleads that it delivered a payment claim, that no payment schedule was delivered within the specified time, that it had given the relevant pre-litigation notice, and accordingly, it is entitled to judgment for the amount of the claim under s. 100 BIFA.

2. By its defence, CBO denies that it was served with a valid payment claim on three grounds. 

   (a)First, Payment Claim 26 impermissibly claimed payment in respect of more than one construction contract; 

   (b)Second, Payment Claim 26 failed to identify the construction work to which it related, as required by s. 68(1)(a) BIFA, and therefore is invalid;

   (c)Third, Payment Claim 26 did not request payment, as required by s. 61(c), and therefore is invalid.

3. The last point was developed in submissions in a different way from the pleaded defence. CBO contended that Payment Claim 26 did not request payment from CBO, because it was not addressed to CBO. This last point seemed, as a matter of law, to be a submission that Payment Claim 26 was not given to CBO, as required by s. 75(1) BIFA.

4. This is a summary judgment application under Rule 292 Uniform Civil Procedure Rules 1999 (Qld) (UCPR), as opposed to a final hearing of an originating application. Rule 292(2) relevantly provides:

   292 Summary judgment for plaintiff

   (1)   A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.