FK Gardner & Sons Pty Ltd v Dimin Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:	F K Gardner & Sons Pty Ltd v Dimin Pty Ltd [2006] QSC 243
PARTIES:	FK GARDNER & SONS PTY LTD (applicant) v DIMIN PTY LTD (ACN 010 637 859) (respondent)
FILE NO/S:	BS 6605/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING	Supreme Court of Queensland
COURT:
DELIVERED ON:	1 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2006
JUDGE:	Lyons J
ORDER:	Application dismissed with costs to be assessed
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – Whether applicant is a person to whom s 17 of the Building and Construction Industry Payments Act (Qld) (2004) applies
Building and Construction Industry Payments Act (Qld) (2004), s 7, s 8, s 10, s 12, s 17, s 18, s 19 Trade Practices Act 1974, s 52, s 87
Beckhaus v Brewarrina Council (2002) NSWSC 960 Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
COUNSEL:	R N Wensley QC for the applicant S Couper QC for the respondent
SOLICITORS:	Kym Flehr Legal Solutions for the applicant Home Wilkinson Lowry for the respondent
LYONS J:
Background

1. The applicant is the contractor under a written design and construct building contract and the respondent is the principal. The contract is dated 2 November 2004. The contract sum is $11,495,000 and the works comprise an apartment block. Work began on 8 December 2004.

2. The contractual documents can be identified by an Agreement dated 2 November 2004 which agrees that a series of nine documents “shall together comprise the contract between the Parties.” The relevant documents included the Australian Standard Form of Formal Instrument of Agreement (AS 4902-2000), an Addendum to Contract AS 4902-2000 and a document titled Amendments to Standard Terms and Conditions of AS 4902-2000 (the Amendment document).

3. Standard clause 37 of the Australian Standard Form of Formal Instrument of Agreement, which provided for payment, was deleted and the Amendment document replaced it with a non standard payment clause. This replacement clause at 37.1 provided that “The contractor shall make progress claims or Payment Claims progressively in accordance with Item 33”. Item 33 then provides “Times for progress claims-28th day of each month for WUC done to the 28th day of that month”.

4. Essentially then the contract provided for a payment regime involving submission of claims by the contractor on the 28th day of the month, certification (by way of a payment schedule) by the contract superintendent, and payment by the principal.

5. Consequently during the course of the works, claims were made, Payment Schedules were issued and payments were made in accordance with the contract up until progress claim 15. This claim was lodged with the superintendent on 28 April 2006. A payment schedule was subsequently issued on 30 April 2006 and the approved amount of claim was duly paid.

6. No claim would appear to have been lodged in May 2006 but on or about 20 June 2006 the applicant issued its next payment claim No 16 and served it…