JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KELLOGG BROWN & ROOT PTY LTD -v- DORIC CONTRACTORS PTY LTD [2014] WASC 206
CORAM: ACTING MASTER GETHING
HEARD: 1 MAY 2014
DELIVERED : 10 JUNE 2014
FILE NO/S: COR 48 of 2014
BETWEEN: KELLOGG BROWN & ROOT PTY LTD (ACN 007 660 317)
Plaintiff
AND
DORIC CONTRACTORS PTY LTD (ACN 080 922 498)
Defendant
Catchwords:
Corporations Law - Statutory demand - Application to set aside demand pursuant to s 459H(1)(a) (genuine dispute) and s 459J(1)(b) (some other reason) - Abuse of process - Parallel judicial review proceedings
Building and construction - Construction Contracts Act 2004 (WA) - Attempt to enforce a determination using the statutory demand process - Failure to seek leave to enforce pursuant to Construction Contracts Act s 43(2)
Legislation:
Construction Contracts Act 2004 (WA), s 43
Corporations Act 2001 (Cth), s 459H, s 459J
Result:
Respondent restrained from enforcing the statutory demand on the ground of an abuse of process
Category: A
Representation:
Counsel:
Plaintiff: Mr J R Ludlow
Defendant: Mr J M Healy
Solicitors:
Plaintiff: HWL Ebsworth Lawyers
Defendant: Encore Legal Pty Ltd
Case(s) referred to in judgment(s):
Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22
Cape Range Electrical Contractors Pty Ltd v Austral Construction Pty Ltd [2012] WASC 304
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85
David Grant & Co Pty Ltd v Westpac Banking Corp [1995] HCA 43; (1995) 184 CLR 265
Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473
Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91
Diploma Construction (WA) v KPA Architects Pty Ltd [2013] WASC 407
DPD Pty Ltd v McHenry [2012] WASC 140
Drewniak v Air Rubber Pty Ltd [2002] SASC 319
Durkan v Sandbank Holdings Pty Ltd [2008] WASCA 249
Eumina Investments Pty Ltd v Westpac Banking Corp (1998) 84 FCR 454
Fitness First Australia Pty Ltd v Dubow [2011] NSWSC 531
Food Channel Network Pty Ltd v Television Food Network GP [2010] FCA 403
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72
K & J Burns Electrical Pty Ltd v GRD Group (NT) Pty Ltd [2011] NTCA 1
Kezarne Pty Ltd v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWSC 338
Meehan v Glazier Holdings Pty Ltd [2005] NSWCA 24; (2005) 53 ACSR 229
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Michael Ebbott t/as South Coast Scaffolding and Rigging Services v Hire Access Pty Ltd [2012] WADC 66
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- Case
- [2014] WASC 206
- Decision Date
CaseChat Overview and Summary
The court was required to decide several key issues. Firstly, whether a determination under the Construction Contracts Act could be enforced by way of a statutory demand without first obtaining leave from the court. Secondly, whether there was a genuine dispute over the existence of the debt as Kellogg argued the claims giving rise to the determinations had no merit. Thirdly, whether there was a genuine dispute over the validity of the determinations. Fourthly, whether there was some other reason to set aside the statutory demand. Fifthly, whether Doric was abusing the statutory demand process, and finally, what orders should be made in light of the findings.
The court held that a determination under the Construction Contracts Act does not create a debt that is immediately due and payable, and therefore, leave from the court is required to enforce such a debt as a judgment. The court found that Doric's failure to obtain leave constituted a defect in the statutory demand process. The court also found that there was no genuine dispute over the existence of the debt or its validity. However, the court determined that Doric had abused the statutory demand process by issuing the demand without obtaining the necessary leave, which constituted a substantial injustice to Kellogg. Consequently, the statutory demand was set aside, and Doric was restrained from relying on the statutory demand process.
The court ordered that the statutory demand be set aside and that Doric be restrained from taking any further steps to enforce it. Additionally, the court awarded costs to Kellogg for the application.
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