Mansouri v Aquamist P/L - [2010] QCA 209

SUPREME COURT OF QUEENSLAND

CITATION:

Mansouri & Anor v Aquamist P/L [2010] QCA 209

PARTIES:

PARVINDOKHT MANSOURI
(first respondent/first appellant)
SHAHABOLLAH MANSOURI
(second respondent/second appellant)
v
AQUAMIST PTY LTD
ACN 117 493 115
(applicant/respondent)

FILE NO/S:

Appeal No 2574 of 2010
DC No 259 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2010

JUDGES:

Chief Justice and Fraser and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Allow the appeal, set aside the judgment in the District Court, and order the respondent to pay the appellants’ costs of the appeal, to be assessed on the standard basis. 1.

Order that:2.

The originating application filed by the respondent on 28 October 2009 proceed as if started by claim. (a)

The respondent file and serve its statement of claim within 14 days.(b)

The appellants file and serve their notice of intention to defend and defence within 14 days from the date of service of the respondent’s statement of claim. (c)

The parties have liberty to apply in the trial division in relation to those directions and generally.(d)

The costs of and incidental to the respondent’s originating application and the appellants’ cross application be reserved to the trial judge.(e)

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where the appellants were the registered owners of the land on which the respondent carried out work – where the respondent alleged that the appellants were liable for progress payments under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”) – where the primary judge gave summary judgment in favour of the respondent for a progress payment under s 19(2)(a)(i) BCIPA – where the appellants argued that the primary judge erred as there was a factual dispute about the existence of a construction contract – where the respondent conceded that the primary judge’s analysis could not be sustained but argued that direct agreements and arrangements demonstrated that the appellants were liable pursuant to s 17(1) BCIPA – whether the primary judge erred in giving summary judgment on the ground that the appellants were persons who were liable to make a progress payment under BCIPA – whether summary judgment was suitable given the lack of clarity on the evidence of the identities of the parties to the arrangement for construction work

Building and Construction Industry Payments Act 2004 (Qld) s 3(3)(c)(ii), s 7, s 8, s 12, s 17(1), s 18(1), s 18(4), s 18(5), s 19(2)(a)(i)

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, followed
Beckhaus v Brewarrina Council [2002] NSWSC 960, cited
Brodyn Pty Ltd t/as Time Cist and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, considered
Cant Contracting…

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: [2010] QCA 209
Decision Date: 6 August 2010

CaseChat Overview and Summary

The case of Mansouri v Aquamist P/L involved the appellants, who were the registered owners of land, being sued by the respondent for progress payments under the Building and Construction Industry Payments Act 2004 (Qld). The respondent claimed that the appellants were liable for these payments under the statutory provisions of the Act. The primary judge gave a summary judgment in favour of the respondent for a progress payment under section 19(2)(a)(i) of the BCIPA. The appellants contested this decision, arguing that the primary judge erred in giving summary judgment because there was a factual dispute over the existence of a construction contract.

The legal issues the court had to decide were whether the primary judge erred in giving summary judgment on the basis that the appellants were liable for the progress payments under the BCIPA, and whether summary judgment was appropriate given the lack of clarity in the evidence regarding the identities of the parties to the arrangement for construction work. The court had to consider the statutory provisions of the BCIPA and the principles of contract law in determining these issues.

The court found that the primary judge erred in giving summary judgment. The evidence presented did not definitively establish the existence of a construction contract, and there was ambiguity regarding the identities of the parties involved in the arrangement for construction work. The court concluded that the factual dispute over these issues required a full trial and could not be resolved through summary judgment. Consequently, the appeal was allowed, the summary judgment was set aside, and the respondent was ordered to pay the appellants' costs of the appeal. The court also ordered that the originating application filed by the respondent proceed as a claim, and set out further procedural directions and cost orders.

Orders

Orders of the court

Allow the appeal, set aside the judgment in the District Court, and order the respondent to pay the appellants’ costs of the appeal, to be assessed on the standard basis. 1.

Order that:2.

The originating application filed by the respondent on 28 October 2009 proceed as if started by claim. (a)

The respondent file and serve its statement of claim within 14 days.(b)

The appellants file and serve their notice of intention to defend and defence within 14 days from the date of service of the respondent’s statement of claim. (c)

The parties have liberty to apply in the trial division in relation to those directions and generally.(d)

The costs of and incidental to the respondent’s originating application and the appellants’ cross application be reserved to the trial judge.(e)

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:	Mansouri & Anor v Aquamist P/L [2010] QCA 209
PARTIES:	PARVINDOKHT MANSOURI (first respondent/first appellant) SHAHABOLLAH MANSOURI (second respondent/second appellant) v AQUAMIST PTY LTD ACN 117 493 115 (applicant/respondent)
FILE NO/S:	Appeal No 2574 of 2010 DC No 259 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	6 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	27 July 2010
JUDGES:	Chief Justice and Fraser and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Allow the appeal, set aside the judgment in the District Court, and order the respondent to pay the appellants’ costs of the appeal, to be assessed on the standard basis. 1. Order that:2. The originating application filed by the respondent on 28 October 2009 proceed as if started by claim. (a) The respondent file and serve its statement of claim within 14 days.(b) The appellants file and serve their notice of intention to defend and defence within 14 days from the date of service of the respondent’s statement of claim. (c) The parties have liberty to apply in the trial division in relation to those directions and generally.(d) The costs of and incidental to the respondent’s originating application and the appellants’ cross application be reserved to the trial judge.(e)
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where the appellants were the registered owners of the land on which the respondent carried out work – where the respondent alleged that the appellants were liable for progress payments under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”) – where the primary judge gave summary judgment in favour of the respondent for a progress payment under s 19(2)(a)(i) BCIPA – where the appellants argued that the primary judge erred as there was a factual dispute about the existence of a construction contract – where the respondent conceded that the primary judge’s analysis could not be sustained but argued that direct agreements and arrangements demonstrated that the appellants were liable pursuant to s 17(1) BCIPA – whether the primary judge erred in giving summary judgment on the ground that the appellants were persons who were liable to make a progress payment under BCIPA – whether summary judgment was suitable given the lack of clarity on the evidence of the identities of the parties to the arrangement for construction work Building and Construction Industry Payments Act 2004 (Qld) s 3(3)(c)(ii), s 7, s 8, s 12, s 17(1), s 18(1), s 18(4), s 18(5), s 19(2)(a)(i) Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41, followed Beckhaus v Brewarrina Council [2002] NSWSC 960, cited Brodyn Pty Ltd t/as Time Cist and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394, considered Cant Contracting…