Impulse Electrical (Aust) Pty Ltd v Mother Natures Chermside Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Impulse Electrical (Aust) Pty Ltd v Mother Natures Chermside Pty Ltd [2007] QDC 023

PARTIES: 

Impulse Electrical (Aust) Pty Ltd

(Applicant)

v

Mother Natures Chermside Pty Ltd

(Defendant)

FILE NO/S:

305/2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

2 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2007

JUDGE:

Forde DCJ

ORDER:

1. Judgment for the applicant against the respondent in thesum of $89,791.67 together with interest pursuant to the Supreme Court Act at the rate of 9 per cent from 2 February 2007. 

2. It is further ordered that the respondent pay to the applicant its costs of and incidental to the application to be assessed.

CATCHWORDS:

Building and Construction Payments – Progress Claims – Payment Schedule – Reference Date

Building and Construction Industry Payments Act 2004 (Qld), ss 7, 8, 12, 17 and Schedule 2.

Building and Construction Industry Security of Payment Act1999 (NSW), ss 8(b), 13

Brodyn Pty Limited v Davenport [2004] NSWCA 394

Brookhollow Pty Ltd v R & R Consultants Pty Ltdand Anor. (No 2) [2006] NSWSC 200

Cant Contracting Pty Ltd v Casella [2006] QCA 538

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

F.K.Gardner & Sons Pty Ltd v Dimin Pty Ltd [2006] QSC 243

Nepean Engineering Pty Ltd v Total Process Services (in liq) [2005] NSWCA 409

Walter Construction Group Ltd v CPL (Surrey Hills) Pty Ltd [2003] NSWSC 266

COUNSEL:

Mr A. Hoare for the Applicant.

Mr T. Matthews for the Defendant.

SOLICITORS:

I

McKays Solicitors for the Applicant.

Hatzis Lawyers for the Respondent.

f

Introduction

1. By a tender dated 4 September 2006,[1] the applicant, Impulse Electrical (Aust) Pty Ltd, offered to carry out the supply and installation of a range of electrical work for the respondent, Mother Natures, at Westfield Shopping Centre, Chermside, a northern suburb of Brisbane.  The tender price of $85,048.000 excluding GST was accepted by the respondent’s agent, Remedial Building Services by facsimile on 24 September 2006.[2]  A deposit of 10% was payable to the applicant.  There was a request to commence work immediately as it was required to be completed by 15 October 2006.  It was not suggested that Remedial Building Services did not have the necessary authority to so contract.

   [1] Exhibit “MB1”to the affidavit of Margaret Anne Bonnett

   [2] Exhibit “MB2”

1. In fact, it appears that work commenced earlier than this 24 September 2006.[3]  A Progress Claim No 1 was tendered through the applicant’s solicitor at the hearing.  It amounted to $8,504.80 excluding GST.  The due date for payment was given as 26 September 2006.  A subsequent Progress Claim No 2 was issued on 27 October 2006.[4]  The previous amount of $8,504.80 was deducted leaving $84,055.15 owing excluding GST.  The latter figure included an additional variation of $7,511.95.  Subsequently, the Remedial Building Services wrote to the applicant and referred to incomplete works and asked it to revise the claim, including a variation.[5]  Subsequently, on 7 December 2006, an amended Progress…