Hunter Construction Management Pty Ltd v Beesley Investments Pty Ltd

[2024] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

Hunter Construction Management Pty Ltd v Beesley Investments Pty Ltd [2024] QDC 182

PARTIES:

HUNTER CONSTRUCTIONS MANAGEMENT PTY LTD (ACN 145 644 088)

(Plaintiff)

V

BEESLEY INVESTMENTS PTY LTD ACN 608 271 745 AS TRUSTEE FOR THE BEESLEY FAMILY TRUST & MAINE FAMILY TRUST

(Defendant)

FILE NO/S:

1698/23

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court

DELIVERED ON:

10 September 2024 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2024

JUDGE:

Porter KC DCJ

ORDERS:

1.   THE CLAIM FILED 14 JUNE 2023 IS DISMISSED.

2.   THE PLAINTIFF IS TO PAY THE DEFENDANT’S COSTS OF THE CLAIM.

3.   THE DEFENDANT IS GRANTED LEAVE TO DISCONTINUE THE COUNTERCLAIM, WITH NO ORDER AS TO COSTS OF THE COUNTERCLAIM.

CATCHWORDS:

PROCEDURE – Civil proceedings in State and Territory courts – Ending proceedings early – Summary judgment for defendant or respondent: stay or dismissal of proceedings – where the plaintiff primarily sought, by claim, judgment for liquidated sums represented by unpaid invoices issued pursuant to building contracts with the defendant – where the defendant sought to defend against the claim, and also advanced a counterclaim for the provision of certificates of inspection necessary for the defendant to obtain a certificate of classification for the building to permit its use – where, on 13 December 2023, most of the plaintiff’s statement of claim was struck out, with leave to replead and orders made for the provision of security for costs in the amount of $40,000 by 22 January 2024 – where there has been no further pleading filed and no security for costs provided – where the defendant enquired whether there was any prospect of the plaintiff producing the security and pursuing the claim, and whether there is any point in pursuing the defendant’s liquidated damages claim – where the director of the plaintiff wrote, on an open basis, about cancelling the action against the defendant – whether the claim be dismissed – whether the defendant be granted leave to discontinue the counterclaim.

COUNSEL:

P. Somers for the defendant

SOLICITORS:

Hearthstone Legal for the defendant

No appearance for the plaintiff

Introduction

1. This proceeding was commenced by the plaintiff, Hunter Construction Management Pty Ltd (HCM) by claim and statement of claim filed 14 June 2023. The claim sought judgment for liquidated sums represented by unpaid invoices issued pursuant to a building contract between HCM and the defendant, Beesley Investments Pty Ltd (Beesley Investments). Alternatively, the claim sought damages in the same amount for breach of contract, or a quantum meruit in the event the contract was ineffective, to use the restitutionary language.

1. Beesley Investments filed a defence and counterclaim on 13 July 2023. The counterclaim sought orders for the provision of certificates of inspection necessary for the defendant to obtain a certificate of classification for the building, to permit its use.

1. The defendant also promptly brought an application to strike out substantial parts of the statement of claim and for security for costs (the Application).

1. The matter was placed on the Commercial List on 25 July 2023. I made directions on 1 September 2023 for, inter alia, the filing of the amended defence and the hearing of the applications. The amended defence was filed on 7 November 2023. It was a substantially revised document which, meaning no disrespect to anybody, was pleaded in a more recognisably orthodox fashion. It is unnecessary for me to deal with the defence insofar as it relates to the claim. In respect of the counterclaim, it added a counterclaim for liquidated damages and articulated, in a slightly fuller and more precise way, the character of the claim based on failure to produce the certificates.

1. The application was amended on 7 December 2023. It maintained the application for security for costs, and for the strike out of many provisions of the statement of claim and, relevantly, added an application to strike out parts of the answer and for judgment on the counterclaim for the provision of certificates.

1. I heard and determined the applications on 13 December 2023. I made orders on that day striking out key allegations in the statement of claim and for provision of security for costs in the amount of $40,000 by 22 January 2024. Importantly, those orders were made by consent.

1. I did not deal with the application for summary judgment on the claim for, effectively, mandatory final injunctive orders compelling production of the certificates at that time. Leave to replead was granted.

1. It is now 10 months later, and no further pleading has been filed. That is probably the consequence of the fact that now, 10 months later and eight months or so since the security was to be provided, no security has been provided. From that perspective, both from the point of view of a proper pleading and from the point of view of the provision of security, the plaintiff’s case has been becalmed, effectively, for over eight months.

1. Nonetheless, the counterclaims remained alive and, on 12 February 2024, Beesley Investments pressed its application for summary judgment on the counterclaims for, in effect, final mandatory injunctive orders compelling performance of the contract by reference to provision of certifications. I made those orders on 12 February 2024.

1. Mr Matthews appeared for HCM on that application. It is not my recollection that Mr Matthews made substantive submissions opposing the making of the orders for production of the certificates. There was a series of directions hearings thereafter in relation to the performance of the obligation imposed by the 12 February 2024 orders.

1. Mr Matthews appeared from time to time in this litigation, but ultimately his instructions ceased. To cut a long story short by the last couple of months, various certificates were provided with the happy consequence, I am now told, that the relevant certifier has certified, as complete, the building in question.

1. There has been further interlocutory activity through this year at the instance of the defendant seeking, in effect, to find out if the plaintiff was worth pursing, either for a defects claim (which is presently not pleaded, but contemplated) or indeed, for the liquidated damages claim presently pleaded in the counterclaim. It is relevant to this application that, notwithstanding the apparently successful access to information about the insurance position on the company, the defendant has formed the view that no insurance will respond to its defects claim in this case.

1. As I said, at some stage in the process, Mr Matthews and his instructing solicitors withdrew. I made orders giving leave to withdraw on submissions from Mr Matthews in May this year. Since then, HCM has filed a notice of acting in person, and there were further steps taken to obtain the relevant certificate. As I have said, that has succeeded.

The defendant’s application to dismiss the claim and discontinue the counterclaim

1. The most recent act in this drama was the attempts by Beesley Investments to work out:

(a)      First, whether there was any prospect at all of HCM producing the security, and then pursuing the heart of the pleading (which had been struck out, and has remained so for the last 10 months); and

(b)      Second, whether there is any point for the defendant in pursuing its presently pleaded liquidated damages claim.

1. Ms Kelly Hunt, for the defendant, has exhibited correspondence with Mr Rex Hunter. Mr Rex Hunter is the sole director and shareholder of HCM, and he has appeared before me from time to time. The most recent instalment was a detailed letter from Ms Hunt to Mr Hunter on behalf of the company, effectively putting the company, through him, on notice of their intention to seek to dismiss the claim, and to discontinue the counterclaim with no order as to costs on the counterclaim, unless there was some basis to think the company might be able to meet a judgment.

1. The letter went considerably further than that, articulating the ordinary considerations one might think would exercise the mind of a potential commercial creditor, including the fact of a substantial QBCC claim to recoup on a payout under the QBCC policy, seemingly to Beesley Investment, in respect of its claim on the insurance policy. I observe that Beesley Investments has already been paid the maximum amount payable under the QBCC policy, and its claims relate to amounts above that, which they assert to be owing.

1. In response, Mr Hunter sent an email indicating that he would not be here today because of a problem he has with his eye. Beesley Investments did not dispute this statement and, Mr Hunter has not struck me, when appearing, as someone who would not be frank. But Mr Somers nonetheless presses for these orders to be made. It is, in effect, in respect of the claim by HCM, an application for dismissal for want of prosecution, though not strictly put in that way. One factor in that is that Mr Hunter sent an email in response to Ms Hunt’s very detailed letter,[1] in which he describes a problem with his eye and then says:

I know that the end result will be to cancel any action against your client …

[1] Affidavit of Kellie Lee Hunt sworn on 5 September 2024, page 11.

1. It may be that “the end result” is said to be the end result of the problems with his eye, or just “the end result” of this litigation overall. Either way, Ms Hunt’s letter was clear as to the issues they raised and the steps they wanted to take. I do not think Mr Hunter could have been in any doubt about that. It is a significant factor that, whether it is the result of the problems with his eye or the result of something else, he was willing to write on an open basis about “cancelling” the action against the defendant.

1. This matter was placed on the Commercial List more than a year ago. It has been pursued with proper vigour by the defendants all the way along. The statement of claim was rendered unviable by a strike out order nine months ago. That situation has never been repaired. Security was ordered. That was due to be paid eight months ago. It has never been paid. And then we have Mr Hunter’s recent acceptance of the end result.

1. If I thought there was a realistic prospect that Mr Hunter, if he got leave to appear, would have said anything that could meaningfully answer the position the defendants advanced today, I would have been inclined to adjourn the matter. But Courts – and commercial Courts, in particular – have to be a little bit careful about endless adjournments.

1. In all the circumstances of this case, it seems that the point has been reached where it is the correct course for me to dismiss the plaintiff’s claim.

Costs

1. The defendant seeks costs of the dismissal. Again, there seems no realistic prospect that a proper exercise of the discretion would have resulted in anything but a costs order in favour of the defendant, for the reasons that I have outlined about the history of the proceeding.

1. The defendant made quite clear to the Court that it was contemplating a third-party costs order. While I think that was a correct disclosure, I do not think it actually impacts on the exercise of the discretion as to costs in respect of the claim. As to the counterclaim, one might think the most important part of it has already been heard and determined by me. With the defendant having succeeded, and happily having succeeded, in getting the certificates that were called for, so they now have a certificate of classification for their building, I accept that there is good reason to discontinue the balance of the counterclaim shown on the material. It would be a pyrrhic victory of the first order to go ahead and get a judgment, if indeed that could be achieved.

1. The defendant does not seek costs; it merely seeks leave to discontinue with no order as to costs which, in my respectful view, is the correct order in respect of the counterclaim.

Orders

1. In those circumstances, the orders I make are that the claim be dismissed; the plaintiff pay the defendant’s costs of the claim; and the defendant have leave to discontinue the counterclaim with no order as to costs.

1. The result of that is that there is no longer any substantive proceeding before me in this matter. If there is to be an application for a third-party costs order, that should be dealt with by me.