Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd - [2015] QSC 170

SUPREME COURT OF QUEENSLAND

CITATION:

Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd [2015] QSC 170

PARTIES:

GAMBARO PTY LTD as Trustee for the Gambaro Holdings Trust (ABN 42 938 456 099)

(plaintiff)

v
ROHRIG (QLD) PTY LTD (ABN 67 093 753 970)

(defendant)

FILE NO/S:

No 8579 of 2014

DIVISION:

Civil

PROCEEDING:

Strike-out application

Application for summary judgment

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2015

JUDGE:

Atkinson J

ORDER:

Applications dismissed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – PLEADING – STATEMENT OF CLAIM JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – where the defendant argued that the plaintiff’s claim had been brought pre-emptively, while the statutory regime had yet to complete running its course, contrary to the intention of BCIPA s 99 – whether the plaintiff’s claim and statement of claim should therefore be struck out in full – alternatively, whether certain paragraphs of the plaintiff’s statement of claim should be struck out under Uniform Civil Procedure Rules 1999 (Qld) r 171.

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – whether, on failure of the defendant’s strike-out application, summary judgment should be granted.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for…

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.

Keep reading for free

Create a free CaseChat account to read Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QSC 170
Decision Date: 19 June 2015

CaseChat Overview and Summary

The case of Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd involved a dispute between a construction contractor (the plaintiff, Gambaro) and a subcontractor (the defendant, Rohrig). The parties had entered into a construction contract, under which Rohrig had made several claims for progress payments prior to practical completion. After practical completion, Rohrig issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) ('BCIPA'), seeking further payment for all works completed up to that point. This payment claim was adjudicated under BCIPA, and Gambaro paid the adjudicated amount. Gambaro then commenced proceedings seeking restitution of the amount owed. Rohrig argued that Gambaro's claim should be struck out in full or, alternatively, certain paragraphs of the statement of claim should be struck out under Uniform Civil Procedure Rules 1999 (Qld) r 171, on the basis that the statutory regime under BCIPA had not yet completed its course.

The primary legal issue before the court was whether the Building and Construction Industry Payments Act 2004 (Qld) ('BCIPA') precluded the enforcement of contractual rights during the operation of the statutory progress payment regime. The court considered whether the effect of BCIPA s 99 was to oust the supervisory jurisdiction of the Supreme Court and prevent the enforcement of a party's contractual rights during the statutory progress payment regime. The court also needed to determine if, on failure of the defendant's strike-out application, summary judgment should be granted. The court addressed these issues by closely examining the wording and intent of s 100 of BCIPA and whether it allowed for the enforcement of contractual rights through civil litigation after the statutory regime had run its course.

The court concluded that the argument submitted by Rohrig, that BCIPA created a statutory entitlement to interim, or on account, payments during the life of a building contract, which ran concurrently with any contractual mechanism for interim, or on account, payments, was not tenable. The court found that Rohrig had exercised its contractual rights by its progress claims and Gambaro had complied with its contractual obligations by paying them as assessed by the superintendent. The court further found that once the rights under Parts 2 and 3 of BCIPA had been exercised, the Act did not exclude the parties from enforcing their rights by civil litigation. The court relied on the decision of the New South Wales Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd, which held that a builder could pursue a claim in the courts even if it was rejected by the adjudicator, and the proprietor could challenge the builder's right to the amount awarded by the adjudicator and obtain restitution of any amount it had overpaid. As a result, the court dismissed both the defendant's application to strike out the statement of claim and the plaintiff's application for summary judgment.

The court ordered that the applications be dismissed, with no order as to costs, given that both parties had been equally successful and unsuccessful in their respective applications. The court acknowledged the difficulty in accepting Rohrig's argument, as it attempted to put a gloss on the wording of s 100 of BCIPA, which did not support the defendant's contention that contractual rights were forever lost. Instead, they were suspended but preserved by s 100 of BCIPA, to be taken into account in arriving at a final figure payable under the contract once the building contract was completed.

Orders

Orders of the court

Applications dismissed.

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

The occasion for striking out the paragraphs of the Statement of Claim listed in paragraphs 1(b) and (c) of the defendant’s application, or for giving summary judgment in accordance with the plaintiff’s application, has not arisen and each of those applications should be dismissed.Conclusion The outcome of these applications is that both should be dismissed. I shall hear the parties as to costs, although in the circumstances, where each party has been equally successful and unsuccessful, there would not appear to be any utility in awarding the costs of the applications.

Ratio Decidendi

Legal Principle Established

Counsel for Rohrig submitted that BCIPA creates a statutory entitlement to interim, or on account, payments during the life of a building contract, which run concurrently with any contractual mechanism providing for interim, or on account, payments. To that extent, BCIPA gives rise to a dual contractual and statutory regime in respect of interim payments during the life of a building contract. However, where those concurrent regimes come into conflict, by necessary statutory intendment, the contractual regime for interim payments yields to the statutory regime for such payments. To the extent that a contractual regime may purport to have a contrary effect, it will offend s 99 of BCIPA. However, the consequence is not that the rights so created under the contract are forever lost. Rather, they are suspended, but preserved by s 100 of BCIPA, so that at the completion of the building contract, all contractual entitlements may be taken into account in arriving at a final, as opposed to an interim or on account, figure payable under the contract, with appropriate allowance being made for whatever assessments and payments were made in accordance with the statutory interim payment regime during the life of the completed contract.Consideration The difficulty in accepting Rohrig’s argument lies in the gloss it attempts to put on the wording of s 100. In the present case, s 99 has applied according to its terms. There has been no attempt to contract out of the provisions of BCIPA by the parties. Rohrig exercised its contractual rights by its progress claims and Gambaro complied with its contractual obligations by paying them as assessed by the superintendent. Rohrig also exercised its statutory right to make a payment claim under BCIPA and to refer the unsatisfied part of that claim to adjudication. Gambaro complied with its statutory duty by paying the adjudicated amount. Once the rights under Parts 2 and 3 have been exercised, BCIPA does not seek to exclude the parties from enforcing their rights by civil litigation. This was recognised by the New South Wales Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd.[6] There, Handley JA held in relation to s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the NSW equivalent of s 100 of BCIPA):“Subsection 1 provides that Part 3 of the Act … does not affect the rights of any party under a construction contract. Subsection 2 is particularly important because it relevantly provides that nothing done under, or for the purposes of Part 3, affects any civil proceedings arising under a construction contract. Finally, subs 3(b) makes a judgment entered under s 25 [equivalent to s 31 of BCIPA] on an adjudication certificate provisional only, both in what it grants and in what it refuses. A builder can pursue a claim in the courts although it was rejected by the adjudicator and the proprietor may challenge the builder’s right to the amount awarded by the adjudicator and obtain restitution of any amount it has overpaid.”[7][6] [2005] NSWCA 49.[7] At [21].

CITATION:	Gambaro Pty Ltd v Rohrig (Qld) Pty Ltd [2015] QSC 170
PARTIES:	GAMBARO PTY LTD as Trustee for the Gambaro Holdings Trust (ABN 42 938 456 099) (plaintiff) v ROHRIG (QLD) PTY LTD (ABN 67 093 753 970) (defendant)
FILE NO/S:	No 8579 of 2014
DIVISION:	Civil
PROCEEDING:	Strike-out application Application for summary judgment
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 June 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2015
JUDGE:	Atkinson J
ORDER:	Applications dismissed.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – PLEADING – STATEMENT OF CLAIM JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – where the defendant argued that the plaintiff’s claim had been brought pre-emptively, while the statutory regime had yet to complete running its course, contrary to the intention of BCIPA s 99 – whether the plaintiff’s claim and statement of claim should therefore be struck out in full – alternatively, whether certain paragraphs of the plaintiff’s statement of claim should be struck out under Uniform Civil Procedure Rules 1999 (Qld) r 171. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for all works completed to that point – where that payment claim was adjudicated under BCIPA – where the plaintiff paid the adjudicated amount – where the plaintiff then commenced proceedings seeking restitution of the amount owed – whether, on failure of the defendant’s strike-out application, summary judgment should be granted. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the plaintiff and defendant entered into a construction contract – where the defendant had made a number of claims for progress payments under the contract prior to practical completion – where the defendant issued a payment claim under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) after practical completion had been reached, seeking further payment for…