Gemini Nominees Pty Ltd v Queensland Property Partners Pty Ltd

The parties in this case were Gemini Nominees Pty Ltd, the builder, and Queensland Property Partners Pty Ltd, the owner of a property. They had entered into a written cost plus contract for renovation works. The builder served a payment claim under the Building and Construction Industry Payments Act 2004 (Qld), but the owner did not serve a payment schedule in response. Furthermore, no fair and reasonable estimate of the total amount the builder was likely to receive under the contract was provided to the owner as required by s 55 of the Domestic Building Contracts Act 2000 (Qld). The central issue before the court was whether a contract that is unenforceable under s 55(3) of the Domestic Building Contracts Act 2000 (Qld) is still a contract to which the Building and Construction Industry Payments Act 2004 (Qld) applies.

The court considered the statutory framework governing the entitlement to and recovery of progress payments in the building and construction industry. The court held that the Building and Construction Industry Payments Act 2004 (Qld) does not apply to a contract that is unenforceable under s 55(3) of the Domestic Building Contracts Act 2000 (Qld). The court also found that the payment claim served by the builder was not valid as it did not comply with the requirements of the Building and Construction Industry Payments Act 2004 (Qld). The court dismissed the application and declared that the letter dated 22 September 2006 from the builder to the owner was not a valid payment claim. The court further declared that the contract between the builder and the owner was unenforceable by reason of s 55(3) of the Domestic Building Contracts Act 2000 (Qld).