Low v MCC Pty Ltd & Ors

[2018] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

Low v MCC Pty Ltd & Ors; MCC Pty Ltd v Low [2018] QSC 6

PARTIES:

In proceeding BS11709 of 2017:

ALVIN LOW
(applicant)
v
MCC PTY LTD
ACN 002 243 263
(first respondent)
RICHARD ATKIN
Registered Adjudicator No. J1182971
(second respondent)
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(third respondent)

In proceeding BS12115 of 2017:

MCC PTY LTD
ACN 002 243 263
(applicant)
v
ALVIN LOW

(respondent)

FILE NO/S:

SC No 11709 of 2017
SC No 12115 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application and Originating Application

DELIVERED ON:

29 January 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2017

JUDGE:

Jackson J

ORDER:

On the application in proceeding BS11709 of 2017:

Upon the applicant giving the usual undertaking as to damages and undertaking to lodge with the registrar of the court within 3 business days an unconditional bank guarantee of payment of the sum of $340,000 to the respondent in a form satisfactory to the registrar, the orders of the court are as follows:

1.   Until further order the first defendant is restrained from enforcing adjudication decision number 2983320 made by the second defendant on 13 October 2017, the adjudication certificate filed on 31 October 2017 as a judgment in proceeding 4164 of 2017 in the District Court of Queensland in the sum of $210,331.32 and the enforcement warrant issued in that proceeding on 13 November 2017.

2.   Until further order the first defendant is restrained from enforcing adjudication decision number 298427 made by the second defendant on 13 October 2017 and the adjudication certificate filed on 31 October 2017 as a judgment in proceeding 4166 of 2017 in the District Court of Queensland in the sum of $90,529.72 and the enforcement warrant issued in that proceeding on 13 November 2017.

3.   Costs of the application and the hearing of 8 December 2017 are reserved.

4.   Liberty to apply.

On the originating application in proceeding BS12115 of 2017 the order of the court is that:

1.   The application is adjourned to a date to be fixed.

2.   Costs of the application and the hearing of 8 December 2017 are reserved.

3.   Liberty to apply.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – BALANCE OF CONVENIENCE GENERALLY – where the applicant is seeking an injunction to restrain enforcement of adjudicator’s decisions under BCIPA filed as judgments in the District Court of Queensland – where the applicant has offered to undertake to provide a bank guarantee in to court sufficient to cover the amount of the adjudicator’s decisions – whether a “prima facie” case has been shown by the applicant – whether the balance of convenience favours the grant of an injunction

COUNSEL:

L Campbell for the applicant
P Hay for the respondent

SOLICITORS:

Case Legal Pty Ltd for the applicant
Tucker Cowen for the respondent

1. These cross applications stem from a dispute as to the validity of two payment claims and adjudication decisions[1] made under the Building and Construction Industry…