GCB Constructions Pty Ltd v SEQ Formwork Pty Ltd - [2023] QSC 71

SUPREME COURT OF QUEENSLAND

CITATION:
GCB Constructions Pty Ltd v SEQ Formwork Pty Ltd & Ors

[2023] QSC 71

PARTIES:
GCB CONSTRUCTIONS PTY LTD ABN 26 151 244 254

(applicant)

v

SEQ FORMWORK PTY LTD ABN 28 168 628 591

(first respondent) and

CHRISTOPHER GROVES

(second respondent) and

THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION)

(third respondent)

FILENO/S: BS 6329 of 2022

DIVISION: Trial Division

PROCEEDING: Originating Application filed on 31 May 2022

ORIGINATING COURT: Supreme Court at Brisbane

DELIVEREDON: 11 April 2023

DELIVEREDAT: Brisbane

HEARINGDATE: 29 July 2022

JUDGE: Burns J

ORDER:
THE ORDER OF THE COURT IS THAT:

1.          It is declared that the adjudication decision made by the second respondent on 17 May 2022 is void and of no effect;

2.          The first respondent is permanently restrained from attempting to enforce, in any manner, the adjudication decision made by the second respondent on 17 May 2022;

3.          The parties have liberty to apply on the giving of three days’ notice in writing;

4. The costs of the application, including the costs reserved on 6 June 2022, shall be paid by the first respondent and assessed on the standard basis.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the

applicant challenged an adjudicator’s decision under the Building Industry Fairness (Security of Payment) Act 2017 – where the applicant contended that an agreement of the kind found by the adjudicator could not amount to a “construction contract” within the meaning of the Act – where the applicant also contended that the claim for payment made by the first respondent could not amount to a “payment claim” within the meaning of the Act – where the applicant also contended that the adjudicator failed to value the work and materials claimed by the first respondent in accordance with the requirements of the Act – whether an agreement of the kind found by the adjudicator was a “construction contract” within the meaning of the Act – whether the claim for payment made by the first respondent was a “payment claim” within the meaning of the Act – whether the adjudicator valued the work and materials claimed by the first respondent in accordance with the requirements of the Act – whether the decision of the adjudicator ought be declared void and of no effect – whether additional relief in aid of such a declaration should be granted

Building Industry Fairness (Security of Payment) Act 2017

(Qld), s 64, s 65, s 66, s 68, s 72, s 75, s 88, s 93
Corporations Act 2001 (Cth), s 459E

Acciona Agua Australia Pty Ltd v Monadelphous Engineering Pty Ltd (2020) 4 QR 410, cited

Crown Green Square Pty Ltd v Transport for NSW [2021] NSWSC 1557, followed
Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58, cited
Kirk v Industrial Court (NSW)

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 GCB Constructions Pty Ltd v SEQ Formwork Pty Ltd

Details

AGLC: GCB Constructions Pty Ltd v SEQ Formwork Pty Ltd [2023] QSC 71
Case: [2023] QSC 71
Decision Date: 11 April 2023

CaseChat Overview and Summary

GCB Constructions Pty Ltd challenged an adjudicator’s decision under the Building Industry Fairness (Security of Payment) Act 2017, which had ruled in favour of SEQ Formwork Pty Ltd. The applicant contended that the agreement between the parties could not amount to a "construction contract" within the meaning of the Act, and that the claim for payment made by the first respondent could not amount to a "payment claim" within the meaning of the Act. The applicant also argued that the adjudicator failed to value the work and materials claimed by the first respondent in accordance with the requirements of the Act.

The court was required to determine whether an agreement of the kind found by the adjudicator was a "construction contract" within the meaning of the Act, whether the claim for payment made by the first respondent was a "payment claim" within the meaning of the Act, and whether the adjudicator valued the work and materials claimed by the first respondent in accordance with the requirements of the Act. The court also had to consider whether the decision of the adjudicator ought be declared void and of no effect, and whether additional relief in aid of such a declaration should be granted.

The court found that the agreement between the parties was not a "construction contract" within the meaning of the Act, as it did not contain the necessary terms and conditions required by the Act. The court also found that the claim for payment made by the first respondent was not a "payment claim" within the meaning of the Act, as it did not meet the requirements set out in the Act. Furthermore, the court found that the adjudicator failed to value the work and materials claimed by the first respondent in accordance with the requirements of the Act, as it did not provide a detailed breakdown of the costs claimed.

The court declared that the adjudication decision made by the second respondent on 17 May 2022 was void and of no effect, and permanently restrained the first respondent from attempting to enforce, in any manner, the adjudication decision. The parties were granted liberty to apply on the giving of three days’ notice in writing.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. It is declared that the adjudication decision made by the second respondent on 17 May 2022 is void and of no effect;

2. The first respondent is permanently restrained from attempting to enforce, in any manner, the adjudication decision made by the second respondent on 17 May 2022;

3. The parties have liberty to apply on the giving of three days’ notice in writing;

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	GCB Constructions Pty Ltd v SEQ Formwork Pty Ltd & Ors [2023] QSC 71
PARTIES:	GCB CONSTRUCTIONS PTY LTD ABN 26 151 244 254 (applicant) v SEQ FORMWORK PTY LTD ABN 28 168 628 591 (first respondent) and CHRISTOPHER GROVES (second respondent) and THE ADJUDICATION REGISTRAR (QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION) (third respondent)
FILENO/S:	BS 6329 of 2022
DIVISION:	Trial Division
PROCEEDING:	Originating Application filed on 31 May 2022
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVEREDON:	11 April 2023
DELIVEREDAT:	Brisbane
HEARINGDATE:	29 July 2022
JUDGE:	Burns J
ORDER:	THE ORDER OF THE COURT IS THAT: 1. It is declared that the adjudication decision made by the second respondent on 17 May 2022 is void and of no effect; 2. The first respondent is permanently restrained from attempting to enforce, in any manner, the adjudication decision made by the second respondent on 17 May 2022; 3. The parties have liberty to apply on the giving of three days’ notice in writing;