Karam Group Pty Ltd v Earthmoving Contractors Pty Ltd - [2021] QSC 10

SUPREME COURT OF QUEENSLAND

CITATION:

Karam Group Pty Ltd v Earthmoving Contractors Pty Ltd & Ors [2021] QSC 10

PARTIES:

KARAM GROUP PTY LTD

(Applicant)

v
EARTHMOVING CONTRACTORS PTY LTD

(First Respondent)

and

CHERIDEN FARTHING
(Second Respondent)

and

PAUL JASON HICK
(Third Respondent)

FILE NO/S:

BS 482 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

9 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2021

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1.   The Applicant file and serve its outline of argument, including grounds of review, save in respect of any fraud allegations, in respect of which it must file and serve a statement of facts and contentions relied upon by 4pm on 22 February 2021.

2.   The Applicant is to file and serve any affidavit material on which it intends to rely by 4pm on 22 February 2021.

3.   The First Respondent is to file its outline of argument and any response to any statement of facts and contention by 4pm on 22 March 2021.

4.   The First Respondent is to file and serve any affidavit material on which it intends to rely by 4pm on 22 March 2021.

5.   That the matter be listed for further directions in the week of 22 March 2021 in the applications list on a date agreed between the parties.

6.   That the applications of the Applicant and the First Respondent otherwise be dismissed.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS - where the Applicant applies for interlocutory injunctive relief restraining enforcement of an adjudication decision; where the Applicant proposes that an amount of an adjudication decision be paid into court which includes amount paid in respect of sub-contractor’s charges; where the Applicant seeks orders for restraint from filing an adjudication certificate in respect of adjudication decision - whether an injunction should be granted; whether there is a prima facie case; whether the applicant is entitled to the final relief sought; whether the balance of convenience favours the making of the interim orders

Building Industry Fairness (Security of Payments) Act 2017 (Qld)
Building and Construction Industry Payments Act 2004 (Qld)

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Minister for Commerce v Contrax Plumbing & Anor [2004] NSWSC 823
Hansen Yuncken v Ericson t/a Flea’s Concreting [2011] QSC 327
All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010)78 NSWLR 393
Southern Ham Breakfast Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 340 ALR 193
Mc Nab Developments (Qld ) Pty ltd v MAK Construction Services Pty Ltd [2013] QSC 293
FK Gardner & Sons Pty Ltd v Dimin Pty Ltd [2006] QSC 243
Kirk v The Industrial Court of New South Wales (2010) 239 CLR 539
Perrinepod Pty Ltd Georgiou Building Pty Ltd [2011] WASCA 217
Probuild Constructions (Aust) Pty Ltd v Shade Systems…

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.

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Details

Case: [2021] QSC 10
Decision Date: 9 February 2021

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Karam Group Pty Ltd sought an interlocutory injunction against Earthmoving Contractors Pty Ltd to prevent the enforcement of an adjudication decision. The Applicant also sought to restrain the Respondent from filing an adjudication certificate concerning the decision. The adjudication decision included amounts paid for sub-contractor's charges. The Applicant proposed to pay an amount of the adjudication decision into court, but this was not accepted by the Respondent. The Applicant argued it had a prima facie case, that the balance of convenience favoured the making of the interim orders, and that it was entitled to the final relief sought.

The Court considered the relevant factors for granting an interlocutory injunction. These included whether the Applicant had a prima facie case, whether the balance of convenience favoured the making of the interim orders, and whether the Applicant was likely to be entitled to the final relief sought. The Court found that while the Applicant had established a prima facie case, it was not satisfied that the balance of convenience favoured the making of the interim orders. The Court also found that the Applicant was not entitled to the final relief sought, as it had not demonstrated that it would succeed at trial. The Court therefore dismissed the Applicant's applications. However, it ordered that the Applicant file and serve its outline of argument and affidavit material by certain dates, and that the matter be listed for further directions. The First Respondent was also ordered to file its outline of argument and affidavit material by certain dates.

Orders

Orders of the court

The order of the Court is that:

1. The Applicant file and serve its outline of argument, including grounds of review, save in respect of any fraud allegations, in respect of which it must file and serve a statement of facts and contentions relied upon by 4pm on 22 February 2021.

2. The Applicant is to file and serve any affidavit material on which it intends to rely by 4pm on 22 February 2021.

3. The First Respondent is to file its outline of argument and any response to any statement of facts and contention by 4pm on 22 March 2021.

4. The First Respondent is to file and serve any affidavit material on which it intends to rely by 4pm on 22 March 2021.

5. That the matter be listed for further directions in the week of 22 March 2021 in the applications list on a date agreed between the parties.

6. That the applications of the Applicant and the First Respondent otherwise be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Karam Group Pty Ltd v Earthmoving Contractors Pty Ltd & Ors [2021] QSC 10
PARTIES:	KARAM GROUP PTY LTD (Applicant) v EARTHMOVING CONTRACTORS PTY LTD (First Respondent) and CHERIDEN FARTHING (Second Respondent) and PAUL JASON HICK (Third Respondent)
FILE NO/S:	BS 482 of 2021
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	9 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	28 January 2021
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The Applicant file and serve its outline of argument, including grounds of review, save in respect of any fraud allegations, in respect of which it must file and serve a statement of facts and contentions relied upon by 4pm on 22 February 2021. 2. The Applicant is to file and serve any affidavit material on which it intends to rely by 4pm on 22 February 2021. 3. The First Respondent is to file its outline of argument and any response to any statement of facts and contention by 4pm on 22 March 2021. 4. The First Respondent is to file and serve any affidavit material on which it intends to rely by 4pm on 22 March 2021. 5. That the matter be listed for further directions in the week of 22 March 2021 in the applications list on a date agreed between the parties. 6. That the applications of the Applicant and the First Respondent otherwise be dismissed.
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS - where the Applicant applies for interlocutory injunctive relief restraining enforcement of an adjudication decision; where the Applicant proposes that an amount of an adjudication decision be paid into court which includes amount paid in respect of sub-contractor’s charges; where the Applicant seeks orders for restraint from filing an adjudication certificate in respect of adjudication decision - whether an injunction should be granted; whether there is a prima facie case; whether the applicant is entitled to the final relief sought; whether the balance of convenience favours the making of the interim orders Building Industry Fairness (Security of Payments) Act 2017 (Qld) Building and Construction Industry Payments Act 2004 (Qld) Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Minister for Commerce v Contrax Plumbing & Anor [2004] NSWSC 823 Hansen Yuncken v Ericson t/a Flea’s Concreting [2011] QSC 327 All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010)78 NSWLR 393 Southern Ham Breakfast Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 340 ALR 193 Mc Nab Developments (Qld ) Pty ltd v MAK Construction Services Pty Ltd [2013] QSC 293 FK Gardner & Sons Pty Ltd v Dimin Pty Ltd [2006] QSC 243 Kirk v The Industrial Court of New South Wales (2010) 239 CLR 539 Perrinepod Pty Ltd Georgiou Building Pty Ltd [2011] WASCA 217 Probuild Constructions (Aust) Pty Ltd v Shade Systems…