Leighton Contractors v Vision Energy

SUPREME COURT OF QUEENSLAND

CITATION:

Leighton Contractors v Vision Energy [2010] QSC 353

PARTIES:

LEIGHTON CONTRACTORS PTY LTD (ACN 000 893 667)
(applicant)
v
VISION ENERGY PTY LTD (ACN 114 305 985)
(respondent)

FILE NO/S:

BS4424/10

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

17 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2010

JUDGE:

Margaret Wilson J

ORDER:

1. that the application be dismissed; and

2. that the applicant is to pay the respondent’s costs of and incidental to the application, to be assessed on the standard basis.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where the applicant subcontracted lighting and electrical installation to the respondent pursuant to a schedule of rates contract in February 2009 – substantial completion of the works in December 2009 – applicant submitted release and waiver to respondent pursuant to contract – where respondent could provide written response to the details in the release and waiver – where release and waiver was "final and binding" on both parties if respondent failed to return or respond, and to the extent it did not disagree with the details in it –where respondent submitted progress claim pursuant to Building and Construction Industry Payments Act 2004 (Qld) s 17 – where applicant served a payment schedule – where respondent lodged an adjudication application under the Building and Construction Industry Payments Act 2004 (Qld) s 21 – where adjudication certificate was filed in Supreme Court in May 2010 as a judgment debt pursuant to Building and Construction Industry Payments Act 2004 (Qld) s 31(1) – whether applicant had been released from any interim entitlement the respondent had against it pursuant to the adjudication of the progress claim

Building and Construction Industry Payments Act 2004 (Qld) ss 17-35, 99, 100

Building and Construction Industry Security of Payment Act 1999 (NSW), s 32

Martinek Holdings Pty Ltd v Reed Construction (Qld) Pty Ltd [2009] QCA 329, applied
John Holland Pty Ltd v Roads and Traffic Authority (NSW) (2006) 66 NSWLR 624 at [33], cited

COUNSEL:

BD O'Donnell QC and P Hastie for the applicant

P Dunning SC and GD Beacham for the respondent

SOLICITORS:

McInnes Wilson for the applicant

Holding Redlich for the respondent

1. Margaret Wilson J:  The applicant ("Leighton") is the main contractor to Brisbane Airport Corporation Pty Ltd in relation to the Brisbane Airport Corporation Northern Access Road Project. It subcontracted lighting and electrical installation work for the project to the respondent ("Vision") pursuant to a schedule of rates contract dated 24 February 2009. In this proceeding Leighton seeks declaratory and injunctive relief against Vision to prevent it from relying on or enforcing an adjudication decision under the Building and Construction Industry Payments Act 2004 ("BCIPA").

Adjudication decision

1. Vision achieved "substantial completion" within the meaning of the contract on 15 December 2009.

1. On 24 February 2010 Vision submitted Progress Claim 13 (received by Leighton the next day) in the sum or $2,977,335 including GST, or $2,706,668 excluding GST. It…