FEDERAL COURT OF AUSTRALIA
Easy Stay Mining Accommodation Pty Ltd v Grounded Construction Group Pty Ltd [2018] FCA 519
File number: WAD 377 of 2017 Judge: COLVIN J Date of judgment: 18 April 2018 Catchwords: CORPORATIONS - Application to set aside statutory demand - whether genuine dispute as to the existence of debt for remuneration for construction work under contract - character of determination by adjudicator under Construction Contracts Act 2004 (WA) - pending application for judicial review - whether 'some other reason' for setting aside the statutory demand Legislation: Construction Contracts Act 2004 (WA) ss 30, 38, 39(1), 40, 43, 45(1), 45(4)
Corporations Act 2001 (Cth) ss 459G(3), 459H, 459J, 459L
Cases cited: Cartwright Hill Pty Ltd v Stargames Corporation Pty Ltd [2003] NSWSC 703
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Citation Resources Ltd v IBT Holdings Pty Ltd [2016] FCA 1265
Durkan v Sandbank Holdings Pty Ltd [2008] WASCA 249
Easy Stay Mining Accommodation Pty Ltd v Faigen [2017] WASC 266
Energy Equity Corporation Ltd v Sinedie Pty Ltd [2001] WASCA 419
Expressway Spares Pty Ltd v CTK Engineering Pty Ltd [2000] NSWSC 1200
Kellogg Brown & Root Pty Ltd v Doric Contractors Pty Ltd [2014] WASC 206
MNWA Pty Ltd v Deputy Commissioner of Taxation [2016] FCAFC 154; (2016) 250 FCR 381
Samsung C&T Corporation v Duro Felguera Australia Pty Ltd [2018] WASCA 27
Date of hearing: 11 April 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: Mr JP Doyle Solicitor for the Applicant: Doyles Construction Lawyers Counsel for the Respondent: Mr JJ Leslie Solicitor for the Respondent: Zafra Legal ORDERS
WAD 377 of 2017 BETWEEN: EASY STAY MINING ACCOMODATION PTY LTD (ACN 616 663 640)
Applicant
AND: GROUNDED CONSTRUCTION GROUP PTY LTD (ACN 166 112 429)
Respondent
JUDGE:
COLVIN J
DATE OF ORDER:
18 APRIL 2018
THE COURT ORDERS THAT:
1.The statutory demand dated 30 June 2017 served on the applicant by the respondent be set aside.
2.The respondent pay the applicant's costs excluding the costs of the affidavit of Ms Caroline Mallon dated 10 April 2018 and any other costs relating to the issue of the need to prove the statutory demand, such costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
In 2017, Grounded Construction Group Pty Ltd (GCG) undertook work on the construction of a mining camp at Mount Morgans near Laverton in Western Australia. The work was undertaken for Easy Stay Mining Accommodation Pty Ltd. Easy Stay had a contract with Dacian Gold to construct the camp. Work by GCG commenced in February 2017.
In June 2017, GCG left the site where the mining camp was being constructed after being requested by Easy Stay to leave. Some 17 invoices were issued by GCG…
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- Case
- [2018] FCA 519
- Decision Date
CaseChat Overview and Summary
The court examined whether the statutory demand could be set aside due to a genuine dispute over the existence of the debt, which hinged on the terms of the contract and the adjudicator's determination under the Construction Contracts Act 2004 (WA). Additionally, the court considered if the statutory demand should be set aside for some other reason, given that Grounded Construction Group Pty Ltd intended to invoke the adjudication procedure under the Construction Contracts Act 2004 (WA) for a significant portion of the claim. The court found that the statutory demand might be set aside on the basis of an abuse of process, as it was issued when Grounded Construction Group Pty Ltd intended to use the adjudication procedure.
The Federal Circuit Court of Australia concluded that the statutory demand should be set aside. The court ruled that Easy Stay Mining Accommodation Pty Ltd, having been successful in its application, was entitled to its costs, except for the costs related to the late filing of the statutory demand and the proof of the statutory demand, which should have been addressed in the initial affidavit. The court's orders included setting aside the statutory demand and requiring Grounded Construction Group Pty Ltd to pay Easy Stay Mining Accommodation Pty Ltd's costs, excluding certain specified costs.
Orders
Orders of the court
1. The statutory demand dated 30 June 2017 served on the applicant by the respondent be set aside.
2. The respondent pay the applicant's costs excluding the costs of the affidavit of Ms Caroline Mallon dated 10 April 2018 and any other costs relating to the issue of the need to prove the statutory demand, such costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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