Devpro v Seamark P/L - [2006] QSC 392

SUPREME COURT OF QUEENSLAND

CITATION: Devpro v Seamark P/L & Anor [2006] QSC 392
PARTIES: DEVPRO (A FIRM)
(plaintiff)
v
SEAMARK PTY LTD ACN 058 624 516
(first defendant)
and
MACPRO PTY LTD ACN 068 964 447
(second defendant)
FILE NO: S3221 of 2004
DIVISION: Trial Division
PROCEEDING: Trial
DELIVERED ON: Reasons for judgment delivered on 18 December 2006.
Order made 20 December 2006.
DELIVERED AT: Supreme Court, Brisbane
HEARING DATE: 7, 8, 9, 10, 11 August, 20, 21 September 2006
JUDGE: Wilson J
ORDER: That the first defendant pay the plaintiff the sum of $1,106,154.11, including interest in the sum of $257,508.61 from 26 August 2003 to 20 December 2006
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – TIME – where the plaintiff (developer) and the first defendant (owner) entered into a joint venture agreement to develop a parcel of land as a shopping centre – where the agreement had a sunset clause – where, on the passing of the sunset date, the first defendant had the right to terminate the agreement – where, after the sunset date, both parties acted as if the agreement were still in operation – where such conduct on the part of the first defendant constituted an election not to terminate – whether first defendant could validly bring the agreement to an end on the ground of effluxion of time
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where the joint venture agreement between the parties provided that the plaintiff was entitled to a substantial development fee if the buildings (as defined in the agreement) were leased when the development land was onsold – whether, on the facts, the plaintiff was entitled to be paid the development fee.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where the calculation of the development fee owing to the plaintiff involves a consideration of the profit made by the project – where the first defendant agreed to bear the difference between the amount paid to the builder and a reasonable amount for the work done by the builder for the purpose of calculating profit – where the builder made substantial variation claims – what constitutes a reasonable amount for the work done
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT BASIS – IN GENERAL – where the plaintiff did work in relation to a nearby site – whether the plaintiff is entitled to be paid for that work on a quantum meruit basis
The Commonwealth v Amman Aviation Pty Ltd (1991) 174
CLR 64, cited
Immer (No 145) Pty Ltd v The Uniting Church in Australia
Property Trust (NSW) (1992-1993) 182 CLR 26, cited
Interchase Corporation Limited (In Liq) v Grosvenor Hill
(Queensland) Pty Ltd No 3 [2003] 1 Qd R 26, cited
Ray Teese Pty Ltd v Syntex Australia Limited [1998] 1 Qd R
104, cited
Serisier Investments Pty Ltd v English [1989] 1 Qd R 678,
cited

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.

Continue reading Devpro v Seamark P/L

Details

AGLC: Devpro v Seamark P/L [2006] QSC 392
Case: [2006] QSC 392
Decision Date: 18 December 2006

CaseChat Overview and Summary

The case of Devpro v Seamark P/L involved the plaintiff, Devpro, suing the defendants, Seamark P/L, over a dispute related to a development fee and interest. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was the calculation of interest on both the development fee and a quantum meruit claim, as well as the date from which this interest should be calculated.

The court determined that interest should be calculated at 9% per annum, a rate agreed upon by the parties and set in Practice Direction No 2 of 2002. The court further decided that interest on the quantum meruit claim should commence from 26 August 2003, the date when the claim was first raised in an amended pleading. After considering the calculations provided by the parties, the court concluded that the plaintiff was entitled to a total amount of $1,106,154.11, including interest of $257,508.61 accrued from 26 August 2003 to 20 December 2006.

The court ordered the first defendant to pay the plaintiff the aforementioned amount. It also set deadlines for the parties to submit written submissions on costs and directed that copies of these submissions be delivered to the court associate. The orders were precise and required the parties to adhere to specific timelines for the submission of their cost-related arguments.

Orders

Orders of the court

That the first defendant pay the plaintiff the sum of $1,106,154.11, including interest in the sum of $257,508.61 from 26 August 2003 to 20 December 2006

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

Such interest should be calculated at 9% per annum. In fixing on 9%, I have had regard to the parties’ agreement that it should be the rate used in the calculation of the Adjusted Capital Outlay and to its being the rate set in Practice Direction No 2 of 2002[168] for the purpose of UCPR r 283(2)(a). [168] [2002] 1 Qd R 638. Conclusion The plaintiff is entitled to – I will ask the parties to submit calculations of the development fee and interest. I will hear them on costs. Addendum – 20 December 2006 The parties have calculated the Development Fee as $840,017.50. There was argument upon whether interest should be allowed on the quantum meruit claim (as well as on the Development Fee), and if so, from what date. The quantum meruit claim was first raised in an amended pleading on 4 October 2004. I determined to allow interest on the quantum meruit claim (as well as on the Development Fee) from 26 August 2003. In the premises, the parties agreed upon the following figures – I order the first defendant to pay to the plaintiff the sum of $1,106,154.11, including interest in the sum of $257,508.61 from 26 August 2003 to 20 December 2006. I direct – 1. The plaintiff to serve upon the first and second defendants written submissions on costs by 19 January 2007; 2. The first defendant to serve upon the plaintiff and the second defendant written submissions on costs by 2 February 2007; 3. The second defendant to serve upon the plaintiff and the first defendant written submissions on costs by 2 February 2007; and 4. The parties to deliver copies of their submissions on costs to my associate by the dates outlined above. Annexure (Exhibit 10)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Devpro v Seamark P/L & Anor [2006] QSC 392
PARTIES:	DEVPRO (A FIRM) (plaintiff) v SEAMARK PTY LTD ACN 058 624 516 (first defendant) and MACPRO PTY LTD ACN 068 964 447 (second defendant)
FILE NO:	S3221 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	Reasons for judgment delivered on 18 December 2006. Order made 20 December 2006.
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	7, 8, 9, 10, 11 August, 20, 21 September 2006
JUDGE:	Wilson J
ORDER:	That the first defendant pay the plaintiff the sum of $1,106,154.11, including interest in the sum of $257,508.61 from 26 August 2003 to 20 December 2006