Ian Davis Surveys P/L v T and M Buckley P/L
[2012] QMC 4
•3 February 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Ian Davis Surveys P/L v T & M Buckley P/L [2012] QMC 4 |
PARTIES: | IAN DAVIS SURVEYS PTY LTD (plaintiff) v T & M BUCKLEY PTY LTD TRADING AS SHAILER CONSTRUCTIONS QLD BN 1149799 (defendant) |
FILE NO/S: | M96/10 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Application to amend claim; Application for summary judgment |
ORIGINATING COURT: | Magistrates Court at Wynnum |
DELIVERED ON: | 3 February 2012 |
DELIVERED AT: | Wynnum |
HEARING DATE: | 9 September 2011 |
MAGISTRATE: | Sarra Z |
ORDER: | Application to amend claim granted; Application to enter summary judgment granted |
CATCHWORDS: | TRADE PRACTICES – BUILDING AND CONSTRUCTION – payment of building contract – Payment Claim – subcontract agreement – summary judgment Building and Construction Industry Payment Act 2003, s 18, s 19 Subcontractors’ Charges Act 1974 Uniform Civil Procedure Rules 1999 |
COUNSEL: | BE Codd for plaintiff SB Whiten for defendant |
SOLICITORS: | Colville Johnstone Lawyers for plaintiff Mills Oakley Lawyers for defendant |
[1] The Plaintiff is a registered Consulting Surveying Company who entered an agreement with the Defendant Company, T & M Buckley trading under the name of Shailer Constructions Qld. The Plaintiff contracted to:
Supply all labour and materials to survey as per plans and specification including but not limited to all external corners of all houses which include peg, pin, survey fieldwork level to a temporary benchmark on/close to each house site.
The work involved the three stage development of the site situated at “Seaforth @ Manly, 57 Moss Road, Wakerley.”
[2] The Plaintiff is seeking to recover a Progress payment in the sum of $11,152.90 which the Plaintiff alleges is a debt owing due to the Defendant Company’s failure to respond to a Payment Claim the Plaintiff served on the Defendant by facsimile sent on 14 January 2010.
[3] The Building and Construction Industry Payments Act 2004 provides a statutory right to receive the periodic payments of monies that might be owed to a Claimant who is entitled to recover funds in circumstances where the Claimant has provided goods and services under the terms and conditions of a Construction contract and after submitting a “Payment Claim” has had no response from a Respondent. That failure of the Respondent to respond will result in action being taken to recover funds in a Court of competent jurisdiction. Section 19 of the Building and Construction Industry Payments Act 2004 precludes a Respondent from filing a defence or counterclaim in such actions.
[4] The Applicant (Plaintiff) filed an application pursuant to rule 377 of the Uniform Civil procedure Rules 1999, to amend the Claim by deleting the words ‘liquidated damages’ and inserting the words ‘being the unpaid portion of the Payment Claim made under the Building and Construction Industry Payments Act 2004’ and further to delete the words ‘in accordance with’ and inserting the words ‘pursuant to.’
[5] If leave to amend its Claim is granted, the Applicant further seeks summary judgement pursuant to rule 292 of the Uniform Civil procedure Rules 1999.
[6] The Plaintiff has filed two identical Applications[1] to the current matter which involve exactly the same issues and considerations as required by Application 96/10. The Parties have asked the Court to consider Application 96/10[2] and accept that any determination delivered in regard to that particular Claim will have an identical impact on the other two Claims.
[1] See Claim numbers 97/10 and 98/10 respectively
[2] See Transcript at page 6 line 30-40
[7] The process originated on 14 May 2010 following the filing of the Claim and Statement of Claim in the Civil section of the Registry of the Magistrates Court at Wynnum. The Claimant sought “liquidated damages” against the Defendant in the sum of $11,152.90 plus associated costs and fees. The Claimant sought “further or in the alternative, liquidated damages against the Defendant for the amount of $11, 152.90 in accordance with Section 19 (2)(a)(i) of the Building and Construction Industry Payments Act 2004”… “for services rendered”
[8] The Applicant submitted the Claim is not required to disclose a cause of action- only the relief sought.’ Counsel for the Applicant, Mr Codd[3] referred to a passage in the decision of her Honour Justice McMurdo J[4] at page 4 of her judgement whereby she defines a “cause of action ”
The term “cause of action” was defined in Cooke v Gill1 as being “every fact which is material to be proved to entitle the plaintiff to succeed”, a definition which many judgments have employed in the context of this rule or its equivalent: see e.g. Allonnor Pty Ltd v Doran2 per McPherson JA. But it has not been applied literally, for otherwise any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action which required leave in the context of a rule such as r 376(4). So in Allonnor Pty Ltd v Doran for example, there is an indication of what the Court of Appeal in Thomas v State of Queensland3 subsequently endorsed as a “fairly broad brush comparison between the nature of the original claim and that to which it is sought to be amended”. The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed, and its location involves a question of degree which can be argued, one way or the other, by the level of abstraction at which a plaintiff’s case is described. Some illustrative guidance is provided by Allonnor Pty Ltd v Doran, Thomas v State of Queensland and another judgment of the Court of Appeal, Central Sawmilling No. 1 Pty Ltd & Ors v State of Queensland.4
[3] Plaintiffs Outline at page7
[4] Borsato v Campbell & Ors [2006] QSC 191
[9] The Statement of Claim filed in support of the Applicant’s Claim made reference to the Building and Construction Industry Payments Act 2004 in paragraphs 3, 10, 12, 13, 14, 15 and 16 respectively.
[10] The Defendant filed a Notice of Intention to Defend and Counterclaim in the Civil section of the Registry of the Magistrates Court at Wynnum on 17 June 2010. In essence the Respondent admits the Parties “entered into a contract to effectively ‘supply all labour and materials to survey as per plans and specifications including but not limited to all external corners of all houses which include peg, pin, survey fieldwork level to temporary benchmark on/ close to each house site” and further, “the Plaintiff was entitled to submit a Progress Payment Claim on the 14th day of each month until the date of practical completion”...whereas “the due date for payment under the Contract was within 25 business days of the Plaintiff submitting a valid Progress Payment Claim.[5]”
[5] Defence paragraph 2 (a)(i) (v) (vi)
[11] The Defendant denies the Plaintiff’s allegation outlined in paragraph 10 of the Statement of Claim “because the alleged ‘Payment Claim’ is not a valid payment claim within the meaning of that term as set out in the Building and Construction Industry Payments Act 2004 (BCIP) as:
(a)It fails to properly identify the construction work or related to goods and services to which it relates as required pursuant top [to] section 17(2)(a) of the BCIPA
(b)Is not in relation to a ‘construction contract’ as that phrase is defined in BCIPA;
(c)Claims for payment for items for which the Plaintiff has already been paid.[6]
[6] Defence paragraph 10(a)(b)(c)
[12] The Defendant denies liability for its failure to respond to the Plaintiff pursuant to section 18 of the Building and Construction Industry Payments Act 2004 insofar as the defendant “denies the allegation contained in paragraph 13(a) of the Statement of Claim because the Defendant did not fail to serve any Payment Schedule.[7]” The Defendant made similar denials[8] in response to allegations set out in paragraph 14 of the Statement of Claim.
[7] Defence paragraph 12(a)
[8] Defence paragraph 13(a) (b)
[13] Mr Ian Davis states at Paragraph 16 of his affidavit sworn and executed on 15 July 2011 that on 10 June 2008 the Plaintiff Company received the Purchase Order number 54/05468 [9]executed by the Parties on 10 June 2008.
[9]Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 11; See also Annexure IPD-4
[14] Annexure I[10] of the Subcontract executed between the Parties on 10 June 2008 refers to “Special Conditions (Clause 24)” which expressly provides that the Special conditions 1 to 19 (inclusive) contained in Purchase Order 54/05468 form part of the Subcontract.”
[10]See Annexure IPD- 6
[15] The document requests the Plaintiff Company to “Please supply the following items and quote our order number on your invoice.” The Plaintiff Company is further advised that;
“Works are to be carried out as per specifications and drawings in accordance with tender documents-: ..Supply all labour and materials to survey as per plans and specifications including but not limited to all external corners of all houses which include peg, pin, survey fieldwork level to a temporary benchmark on/close to each house site.”
[16] The Purchase Order 54/05468 [11]identifies the various Stages of the project development;
STAGE 1:- $18,370 (INCLUDING GST) Start Date: 11/06/2008 Finish date : 10/07/2008
STAGE 2:- $11,000 (INCLUDING GST) Start Date: 10/07/2008 Finish date : 14/08/2008
[11]See Annexure IPD- 4
STAGE 3:- $10,890 (INCLUDING GST) Start Date: 18/08/2008 Finish date : 24/09/2008
[17] Item 17 in the Purchase Order 54/05468[12] states that “No extra work is to be carried out without an official purchase order or variation order from Shailer Constructions Office.” At item 18, the Plaintiff Company is further advised in the following terms, of the Defendant Company position;
“We herby [hereby] notify you of the existence of the Building and Construction Industry Payments Act 2004 and the Subcontractors’ Charges Act 1974, and you are obliged to notify your subcontractors (if any) of this”
[12]Ibid
[18] Mr Davis refers to the SUBCONTRACT AGREEMENT[13] for Stage Two of the development in his affidavit which was executed by the Parties on 10 June 2008.
[13]Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 14; See also Annexure IPD-6
[19] In Schedule 1, Section 1 Definition and Interpretation section the term;
“Progress Payment means a claim for payment submitted by the Subcontractor in accordance with the Subcontract, which claim shall be a valid Progress Payment Claim....
...1.1.18 state that it is a Progress Payment Claim submitted to the Contractor under the Subcontract;
...1.1.19 be in the form of a tax invoice”
[20] “Payment[14]” appears under section 3 of Schedule 1 in the Subcontract Agreement;
[14]See Annexure IPD-6
“3.1.1 The Contractor shall pay the Subcontract Sum to the Subcontractor in accordance with this section.
3.1.2 The Subcontractor is entitled to submit to the Contractor a single valid Progress Payment Claim each month on the day specified in Annexure B to Schedule 1, or the Business Day immediately prior to that day if the day specified is not a Business Day, and at the Date of Practical Completion....
3.1.4. The Contractor shall pay to the Subcontractor, within 25 Business Days after the submission of a valid Progress Payment Claim, the amount, if any, which the Contractor determines is due to the Subcontractor under the Subcontract in relation to that particular Progress Payment Claim (“Progress Payment”)”
[21] The Respondent (Defendant) objects[15] to the amendment asserting that it received notice on 8 September 2011, with ‘no explanation,’ one (1) day prior to this application. The Respondent submits that “without the amendment, they (Applicant) are aware the application was bound to fail for failing to plead the only case permitted under the strict compliance regime of the BCIPA.”
[15] Defendant Outline of submission at page 2
[22] Mr David Shaw[16] in his affidavit sworn on 8 September 2011 opines the;
“Defendant will suffer prejudice if the Plaintiff is given leave to amend its Claim. This prejudice is both in costs and in delay in resolving the Counterclaim, and is caused as prior to the foreshadowed amendment of the Claim and based upon the relief sought by the Plaintiff in its Claim (pre-amendment), it has not been necessary for the Defendant to investigate, and we had not been instructed to investigate, whether the document alleged by the Plaintiff to be a payment claim under the Building and Construction Industry Payment Act 2004 (“BCIPA”) meets each and every basic and essential requirement of the Act. Prior to the proposed amendment of the Claim, this was not necessary because our client was entitled to raise a set-off and counterclaim in this proceeding."
[16] Affidavit of David Andrew Shaw sworn on 8 September 2011 at paragraph 6
[23] Mr Shaw continues[17];
“Given that the Plaintiff is maintaining its Claim in paragraph 1 and 3 of the Claim, and given the potential effect of section 19 (4) of the BCIPA following the amendment to the Claim, our client may also need to take advice from counsel as to whether or not it can maintain its Counterclaim in this proceeding, or whether or it is required to otherwise commence a new proceeding.”
[17] Ibid at paragraph 7
[24] Rule 377[18] allows for an amendment of an originating process, if the amendment sought is of a “technical matter” or the originating process has not been served and all sealed copies of the originating process, and supporting documentation is returned to the court that issued the originating process, or otherwise, with the leave of the court. The rule does not apply to a pleading or particular included in an originating process.
[18]Uniform Civil Procedure Rules 1999
[25] Her Honour Justice Wilson[19] considered whether the respondent’s solicitor’s letter to applicant headed “Without Prejudice” disputing the amount claimed and offering to pay a lesser amount came within the definition of a “payment schedule” within the meaning of s 18 of the Building and Construction Industry Payments Act 1994. Needless to say her Honour determined the letter did not come within the statutory definition.
[19] National Vegetation Management Solutions P/L v Shekar Plant Hire P/L [2010] QSC 3 at page 6
[26] Justice Wilson made the following comments as to the general tenor of consequences following a failure to meet the statutory requirements of the Building and Construction Industry Payments Act;[20]
“The Act provides for progress payments to contractors whether or not the relevant contract makes provision for progress payments, and establishes a procedure for the making and recovery of such claims and their speedy adjudication where they are disputed. However, a party may “claw back” progress payments recovered from it under the Act in subsequent civil proceedings”.
[20] Ibid at page 5
[27] Her Honour considered that a process involving an amendment to a proceeding that may have commenced erroneously is not fatal and a Court may order that the proceeding continue in any event. Her Honour opined[21];
The amount claimed is recoverable as a debt. Ordinarily a proceeding to recover a debt should be brought by claim and statement of claim, and the plaintiff may make an application for summary judgment at any time after the defendant files a notice of intention to defend. Under r 11(a) of the UCPR, a proceeding may be commenced by originating application if the only or main issue in the proceeding is an issue of law and a dispute of fact is unlikely. Of course, if a proceeding is commenced in an incorrect way, the Court may order that it continue as if commenced in the correct way and give any necessary directions. No point was taken about the commencement of this proceeding by originating application. In the circumstances my determination of the substantive issues raised on the application should not be taken as approval or disapproval of the form of originating process used in this case.
In proceedings to recover the interim payment, it is not open to the respondent to raise any defence in relation to matters arising under the construction contract or to bring any counterclaim.
[21] Ibid at page 9-10
[28] When one considers that the Parties agreed to comply with the terms and conditions of a contract which contemplated invoking the provisions of the Building and Construction Industry Payments Act 2004, it should come as no surprise to the Defendant as to the consequences of non compliance with the Acts strict requirements. Mr Shaw intimated as much in his affidavit[22] (supra).
[22] Affidavit of David Andrew Shaw sworn on 8 September 2011 at paragraph 6
[29] The presence of the Building and Construction Industry Payments Act 2004 provisions formed a fundament root in the foundations of the agreement between the Parties. It was central to the mode of “payment” contained in section 3 of Schedule 1 of the Subcontract Agreement[23] executed between the parties on 10 June 2008. The Purchase Order 54/ 05468[24] was utilised by the Defendant Company to notify the Plaintiff of the existence of the Building and Construction Industry Payments Act 2004. The Plaintiff was “obliged to notify your [its] subcontractors (if any) of this.”
[23] See Annexure IPD-6
[24] See Annexure IPD-4
[30] The Purchase Order 54/ 05468 (supra) refers to the respective project including the stage 2 project in the following terms;
STAGE 2:- $11,000 (INCLUDING GST) Start Date: 10/07/2008 Finish date: 14/08/2008
Item 7 confirms that “Progress claims to be submitted on the 14th of each month and paid 25 days after invoice received at office.” Further, it advises the Plaintiff Company to, “Please supply the following items & quote our order number on your invoice.”
[31] It is obvious on the face of this document that the Defendant Company was instructing the Plaintiff Company of the anticipated mode and method of payments in relation to work performed by the Plaintiff Company on their construction project;
“RE: SEAFORTH @ MANLY- 57 MOSS RD, WAKERLEY.”
[32] His Honour Muir JA considered “Cause of action” in Hartnett v Hynes;[25]
Although the term cause of action has been defined as being “every fact which is material to be proved to entitle the plaintiff to succeed,” that definition should not be applied literally so that any new fact to be added to a plaintiff’s case would be treated as raising a new cause of action. ‘The dividing line is between the addition of facts which involve a new cause of action and those which are simply further particulars of the cause already claimed.’
[25] Hartnett v Hynes [2010] QCA 65 at page 7 his Honour referred to Allonnor Pty Ltd v Doran [1998] QCA 372 and Borsato v Campbell & others [2006] QSC 191 at [8]
[33] I do not accept that the application has taken the Defendant by “surprise” and given the technical nature of the “amended” Claim, although having regard to Justice Wilson’s[26] comments this would not amount to a new cause of action;
In proceedings to recover the interim payment, it is not open to the respondent to raise any defence in relation to matters arising under the construction contract or to bring any counterclaim.”
[26] National Vegetation Management Solutions P/L v Shekar Plant Hire P/L [2010] QSC 3 at page 9-10
[34] The amendment would ensure that the Plaintiff’s right to recover the debt owed is assured, provided the Plaintiff has complied with the strict statutory framework of the Building and Construction Industry Payments Act 2004.
[35] In regard to the Defendant’s rights, non compliance will result in the removal of defences and counterclaims that would have ordinarily been available to the Defendant but for the Building and Construction Industry Payments Act 2004.
[36] The Defendant has failed to respond to the Plaintiff’s Payment Claim within the prescribed timeframe which has resulted in this action to recover funds in a Court of competent jurisdiction. Needless to say section 19 of the Building and Construction Industry Payments Act 2004 will preclude the Respondent from filing a defence or counterclaim in these proceedings. There may be some unresolved issues that might exist between the Parties however this will be for a battle to be fought on another day. The Respondent will not suffer any prejudice in relation to the Applicants request to amend the Claim in these circumstances.
Interim Order
Pursuant to Rule 377 I formerly grant the Plaintiff leave to amend the Claim by deleting the words ‘liquidated damages’ and inserting the words ‘being the unpaid portion of the Payment Claim made under the Building and Construction Industry Payments Act 2004’ and further to delete the words ‘in accordance with’ and inserting the words ‘pursuant to.’
Further, I grant identical orders in relation to the Applications in regard to Claims 97/10 and 98/10, respectively.
Application for Summary Judgement
[37] In having granted the amendment in the aforementioned Order I will consider the Plaintiff’s Application for Summary Judgement pursuant to Section 292 of the Uniform Civil Procedures Rules 1999 in the context of the Building and Construction Industry Payments Act 2004.
[38] There is an abundance of Authorities it would appear that has considered every conceivable issue arising out of the Building and Construction Industry Payments Act 2004. Although much of the language used in the Judgements to describe the statutory framework of the Building and Construction Industry Payments Act 2004 is similar and repetitive in nature, her Honour Justice White[27] in National Vegetation Management Solutions Proprietary Limited v Shekar Plant Hire Proprietary Limited provides an informative and comprehensive account;
[27] Northbuild Construction P/L v Central Interior Linings P/L & Ors [2011] QCA 22 at page 14
“Legislative scheme of the Payments Act
[52] Although the Payments Act has operated for some years now and been the subject of frequent litigation, the nature of the issues raised on this appeal suggests that an overview of its relevant provisions should be summarised. The purpose of the Payments Act is to ensure that a person undertaking to carry out construction work or provide goods and services under a construction contract will be able to recover progress payments whether or not the construction contract makes provision for payments of that kind. The Explanatory Note to the Bill explained that security of payment had been an issue in the building and construction industry over many decades. The Royal Commission into the Building and Construction Industry called for legislative intervention because traditional remedies in contract law were considered insufficient to address concerns. As the Explanatory Note mentioned, the failure of any one party in the contractual chain to honour its obligations would often cause a domino effect on other parties, resulting in restricted cash flow and, in some cases, insolvency. This would occur in many cases long before rights under the relevant contract or subcontract could be litigated and determined.
[53] To that end the Payments Act established a statutory based system of rapid adjudication for the interim resolution of “payment on account” disputes involving building and construction work contracts. There can be no contracting out of Payments Act entitlements. The adjudication is conducted by an independent adjudicator with relevant expertise. If the decision of the adjudicator in whole or in part favours the applicant for a progress payment, the respondent to that claim is required to pay the specified amount directed by the adjudicator to the claimant. Decisions by the adjudicator are enforceable in any court of competent jurisdiction on the filing of an adjudication certificate which will operate as a judgment debt. This rapid adjudication does not extinguish a party’s ordinary contractual rights to obtain a final resolution of a payment dispute by a court or tribunal relevantly endowed with jurisdiction to hear such a dispute. But, importantly, in order to effect its purpose of a quick resolution of disputes and to maintain cash flow, the Payments Act provides for only limited recourse to the courts in respect of the adjudication.
[54] The Payments Act applies only to construction contracts, which means a “contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party.” “Construction work” is defined in s 10. The right to a progress payment is established by s 12 irrespective of any provisions in the construction contract, and, if the amount of a progress payment is not able to be calculated under the contract, then by s 13(b) the value of the construction work is the basis for calculation.
The manner of valuing construction work is set out in s 14 by reference to the contract or, in the absence of provisions, by having regard to the contract price, other rates or prices in the contract, any agreed variation and the cost of rectifying defective work.
[55] The progress payment under a construction contract becomes payable pursuant to the provisions of the contract, or in the absence of such a provision, 10 business days after a payment claim for the progress payment has been made in accordance with Pt 3.
[56] Part 3 Div 1 sets out the procedure for recovering progress payments. A person who claims to be entitled to a progress payment, described as the claimant, may serve a payment claim on the person who, under the construction contract, is or may be liable to make the payment, described as the respondent. A payment claim must identify the construction work or related goods and services to which it relates, the amount of the progress payment said to be payable and state that it is made under the Payments Act.
[57] A respondent who is served with a payment claim may reply to that claim by serving a payment schedule on the claimant. It must identify the payment claim to which it relates and the amount of the payment, if any, which the respondent proposes to make. If that amount is less than the amount claimed, the payment schedule must state why that amount is less and, if it is less because the respondent is withholding payment for any reason, the reasons for withholding that payment. If a claimant serves a payment claim on a respondent and the respondent does not serve a payment schedule within the earlier of the time required by the construction contract or 10 business days after receipt of the payment claim, the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment. If the respondent fails to pay the whole or any part of the claimed amount, the claimant may recover the unpaid portion of the claimed amount from the respondent as a debt owing in any court of competent jurisdiction, or make an adjudication application.
[58] If a claimant starts proceedings to recover the unpaid portion of the claimed amount from the respondent as a debt, judgment in favour of the claimant may not be given unless the court is satisfied of the existence of the circumstances giving rise to the entitlement to the claim as set out in s 19(1). Furthermore, the respondent is not, in those proceedings, entitled to bring any counter-claim against the claimant or to raise any defence in relation to matters arising under the construction contract. Similarly, if a respondent serves a payment schedule within time, states an amount that the respondent proposes to pay to the claimant and fails to pay any of that amount by the due date, the claimant may recover the unpaid portion of that amount from the respondent as a debt. If a claimant starts proceedings to recover the unpaid portion of the amount from the respondent as a debt, judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances entitling the claimant to judgment and the respondent is not, in those proceedings, entitled to bring any counter-claim or raise any defence in relation to matters arising under the construction contract.
[59] Part 3 Div 2, which is now excluded from the purview of the Judicial Review Act, deals with the adjudication of disputes about a payment claim by an adjudicator. A claimant may apply for adjudication of a payment claim if the respondent serves a payment schedule and the amount is less than the claimed amount or the respondent fails to pay the whole or any part of the amount identified for payment in the payment schedule or, if the respondent fails to serve a payment schedule or fails to pay the whole or any part of the claimed amount by the due date. An adjudication application must be made to an authorised nominating authority chosen by the claimant and within quite limited time frames, for example, where a payment schedule has been received, within 10 business days. Apart from administrative matters, the adjudication application may contain the submissions relevant to the application which the claimant chooses to include. A copy must be served on the respondent. The authorised nominating authority must refer the application as soon as practicable to a person eligible to be an adjudicator under the provisions in the Payments Act. If the respondent has given a payment schedule, the respondent may give to the adjudicator a response to the claimant’s adjudication application within either five business days after receiving a copy of the application or two business days after receiving notice of an adjudicator’s acceptance of the application. A respondent cannot include in the response any reasons for withholding payment unless those reasons had already been included in the payment schedule served on the claimant.
The Parties:
[39] The Plaintiff Company, IAN DAVIS SURVEYS PTY LTD is a certified licensed Consulting Surveyor having been registered as a Surveyor and endorsed by the Surveyors Board on the thirtieth day of August 1996[28]. The Company once registered, may consult to the public for a fee. The Surveyors Act 2003[29] (as amended) requires the registered surveyor to renew their registration annually and or otherwise, as subject to the Act.
[28]Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 1; See also Annexure IPD-1
[29] The Surveyors Act provides for the registration of surveyors, surveying graduates and surveying associates, and for other purposes.
[40] Mr Ian Phillip Davis registered Surveyor is the sole director of IAN DAVIS SURVEYS PTY LTD. He is a certified licensed Consulting Surveyor having been registered as a Surveyor and endorsed by the Surveyors Board on the thirtieth day of August 1996. The Plaintiff conducts business “supplying cadastral surveying services to the construction industry”[30].
[30] Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 4.
[41] The Defendant Company, T & M Buckley Pty Ltd trading as Shailer Constructions Qld, Master Builders Registered number 16602. The Defendant Company is the building contractor responsible for developing the Seaforth @ Manly Cluster Unit Development[31] on the site situated at 57 Moss Road, Wakerley in the State of Queensland.
[31] See Subcontract Agreement exhibit IPD-6
[42] On 10 June 2008 the Parties executed a Subcontract agreement for Stage two of the Seaforth @ Manly project. It was agreed that the Plaintiff would execute and complete the works defined in Schedule 1 of the Instrument of Subcontract Agreement, in accordance with the terms and conditions contained in schedule 1. Annexure A to Schedule 1 under the heading “The Works (Clause 1.1)[32]” provides;
[32] Ibid
“Brief Description of the Works:
Supply all labour and materials to survey as per plans and specification including but not limited to all external corners of all houses which include peg, pin, survey fieldwork level to a temporary benchmark on/close to each house site.”
Meaning of “Construction Work[33]”:
[33] See Section 10 of the Building and Construction Industry Payments Act 2004
[43] Construction work is broadly defined to cover many aspects of the building industry practices and includes building work within the meaning of the Queensland Building Services Authority Act 1991. It does exclude however, building and construction activities which might be associated with the extraction of oil, gases and minerals.
[44] “Related goods and services[34]”, in relation to construction work, means services of the following including architectural, design, surveying or quantity surveying services relating to construction work.
[34] Ibid Section 11
[45] His Honour Justice Fraser explained “construction contract” in the context of the Building and Construction Industry Payments Act 2004 in Mansouri & Anor v Aquamist[35]
Section 7 of BCIPA provides that the object to that Act is to ensure that a person who undertakes to carry out construction work, or to supply related goods and services, under a “construction contract” is entitled to receive, and is able to recover, progress payments. Section 8 explains how the object is to be achieved. The first part of that object, the statutory entitlement to receive progress payments, is achieved by s 12, which confers an entitlement to progress payments upon a person who has undertaken to carry out construction work, or supply related goods and services, under a “construction contract.” BCIPA defines that term as meaning ―a contract, agreement or other arrangement under which one party undertakes to carry out construction work for, or to supply related goods and services to, another party”.
[35] [2010] QCA 209 at page 3
[46] It is clear the Plaintiff provided surveying or quantity surveying services relating to construction work as per the Subcontract agreement for Stage two of the Seaforth @ Manly project executed with the Defendant Company on 10 June 2008.
[47] His Honour Justice Fraser[36] articulates the second stage of the statutory process after identifying who is entitled to a progress payment claim in Mansouri (supra)
“The second part of the statutory object is achieved, in part, by the procedure for recovering progress payments in Part 3 of BCIPA. Subsection 17(1) provides that a person mentioned in s 12 “who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent).”
Section 18(1) entitles a respondent who is served with a payment claim to reply to the claim by serving a payment schedule. It must identify the payment claim to which it relates, state the amount of the payment, if any, that the respondent proposes to make (“the scheduled amount”). If the scheduled amount is less than the claimed amount the payment schedule must state why. If it is less because the respondent is withholding payment for any reason, the payment schedule must state the respondent’s reasons for that withholding.
Subsection 18(4) provides that s 18(5) applies if a claimant serves a payment claim on a respondent and the respondent does not serve a payment schedule on the claimant within the earlier of the time required by the relevant construction contract or 10 business days after the payment claim is served. Subsection 18(5) provides that the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.”
[36] Mansouri & Anor v Aquamist [2010] QCA 209 at page 3
[48] The Subcontract executed on 10 June 2008 contracted the Plaintiff to provide surveying services for the Defendant in the stage 2 development for the subcontract sum of $11,000.00.
[49] It is clear the Parties had contemplated the statutory framework of the Building and Construction Industry Payments Act 2004 on 10 June 2008 when they signed the Subcontract agreement[37] and had considered it sufficiently enough to have it incorporated into the terms and conditions of the contract.
[37] See paragraphs 11 to 15 supra
[50] The Plaintiff asserts that a Payment Claim[38] in the sum of $11,152.90 was served on the Defendant Company on or about 14 January 2010. The Claim was in relation to the provision of services as set out in the attached invoices no. 2565 and 2566, dated 13 January 2010.
[38] Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 16 See Annexure IPD-7
[51] Philippides J[39] considered the validity of the “payment Claim” in T & M Buckley;
In considering what was required for a valid payment claim in terms of s 17(2)(a) BCIPA and the correct approach in determining whether there was sufficient identification for the purposes of that section, the judge at first instance quoted extensively from the decision of White J (as she then was) in Neumann Contractors P/L v Peet Beachton Syndicate Limited [2009] QSC 376 where the authorities dealing with the New South Wales equivalent to the BCIPA were canvassed.
His Honour noted White J’s reference to what Hodgson JA said in Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 (at [25]) that, “the relevant construction work … must be identified sufficiently to enable the respondent to understand the basis of the claim.” His Honour also noted the comments of Basten JA (at [42]) in the same case that the expression “identified” should be given a purposive construction and that:
“ …what must be done must be sufficient to draw the attention of the principal to the fact that an entitlement to a payment is asserted, arising under the contract to which both the contractor and the principal are parties. In that sense, the claim, to be valid, must be reasonably comprehensible to the other party.”
[39] T & M Buckley P/L v 57 Moss Rd P/L [2010] QCA 381 at page 5
[52] Her Honour (supra) formulated a ‘test’ at page 13 whereby;
“The issue for determination was not whether the payment claim explained in every respect the means by which a particular claim item had been calculated, but whether the relevant construction work or related goods and services was sufficiently identified as explained above. That is, whether the payment claim reasonably identified the construction work to which it related such that the basis of the claim was reasonably comprehensible to the applicant.”
[53] In National Vegetation Management Solutions Pty Ltd v Shekar[40] Justice White referred to his Honour Justice Chesterman’s comments in Minimax Fire Fighting Systems Pty Ltd v Bremore (WA) Pty Ltd whilst focused on the “speed and informality” in assessing the validity of Payment Claims;
“Before considering the first question, I think, it necessary to remember the purpose of the Act because that purpose will influence the approach one takes to the construction of the 14 December email. As Hodgson JA said in Brodyn Pty Ltd T/as Time Cost and Quality v Davenport:6 ‘The Act discloses a legislative intention to give an entitlement to progress payments, and to provide a mechanism to ensure that disputes concerning the amount of such payments are resolved with the minimum of delay. The payments themselves are only payments on account of a liability that will be finally determined otherwise…The procedure contemplates a minimum of opportunity for court involvement…’
[40] [2010] QSC 3 at page 7
The Act emphasises speed and informality. Accordingly one should not approach the question whether a document satisfies the description of a payment schedule (or payment claim for that matter) from an unduly critical viewpoint. No particular form is required. One is concerned only with whether the content of the document in question satisfies the statutory description. To constitute a payment schedule the applicant’s email of 14 December had to:
(i)identify the payment claim to which it related, and
(ii)state any amount which the recipient of the payment claim proposed to make in response to it.
(iii) Importantly, if that amount is less than the amount claimed the payment schedule it must state why it is less.
If these three criteria are satisfied the document will be a payment schedule. How they are expressed, with what formality or lack of it, and with what felicity or awkwardness, will not matter.”
[54] The Payment Claim subject of this application was endorsed with the Statement “This is a Payment Claim made under the Building and Construction Industry Payments Act 2004(QLD). It advised the Defendant Company that the Payment Claim related to survey services carried out on Stage two of the Seaforth @ Manly project. The Payment Claim was produced on 14 January 2010 on the day specified in Annexure B to Schedule 1 of the Subcontract.
[55] The combined effect of the Payment Claim and the two attached Invoices was prepared as per the conditions outlined in the Subcontract and in compliance with the Purchase Order 54/ 05468. The Payment Claim was served on the Defendant via facsimile in accordance with Clause 19.1.3 of the Contract. The Plaintiff has annexed a facsimile Activity Report[41] record confirming that on 14 January 2010 at 15:18 hours, a three page document was transmitted to facsimile number 07 33860166,[42] the Defendant Company facsimile number.
[41] Affidavit of Ian Davis sworn on 15 July 2011 at paragraph 17; See also annexure IPD-8
[42] See exhibit IDP-4 ; See also IPD- 7
[56] The information provided to the Defendant in my view, makes it very clear that the payment claim reasonably identified the construction work to which it related such that the basis of the claim was reasonably comprehensible to the Defendant.
[57] I am satisfied the Applicant has undertaken to supply related goods and services under a construction contract. I accept the Parties have established the 14th day of each month until the date of practical completion[43] as a reference date that entitles the Plaintiff to a progress payment.
[43] See Annexure B of Subcontract exhibit IPD-6
[58] As at 15 July 2011, the Plaintiff maintains the Defendant has not responded to their Payment Claim lodged on 14 January 2010 nor has the Defendant Company paid to the Plaintiff the sum claimed.
[59] I declare the sum of $11,152.90 is a debt owing to the Plaintiff and further, I make similar declarations in regard to the sum of $27,128.75 being sought in Claim no 97/10 and $7,455.84 being sought in Claim no 97/10, respectively.
Order:
Having considered the Application and for the aforementioned reasons I enter Summary Judgement in favour of the Plaintiff.
I grant identical orders in relation to the Applications in regard to Claims 97/10 and 98/10 respectively.
I invite the Parties to make their submissions as to costs.
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