SUPREME COURT OF QUEENSLAND
CITATION:
Mayaman Developments Pty Ltd v TQ Constructions Pty Ltd [2009] QSC 144
PARTIES:
MAYAMAN DEVELOPMENT PTY LTD
(applicant)
v
TQ CONSTRUCTIONS PTY LTD
(respondent)FILE NO/S:
12896/08
DIVISION:
Trial Division
PROCEEDING:
Application to set aside statutory demand
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
12 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2009; 5 March 2009
JUDGE:
Daubney J
ORDER:
1. That the statutory demand dated 20 November 2008 issued by the respondent to the applicant be varied by amending the amount claimed there under to be $747,686.40
CATCHWORDS:
CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACT – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where contract nominated a specific architect to administer the contract – where contract provided for the architect to assess a claim for a progress payment and to issue to the parties a certificate setting out any payment due to the contractor – where construction stopped before completion because the applicant’s financier went into receivership – where there were four certified progress claims unpaid by the applicant at the time the work stopped – where the unpaid progress certificates founded a statutory demand served by the respondent on the applicant, which the applicant sought to set aside – where amount claimed in statutory demand excessive – where applicant argued there was a genuine dispute between the parties about the existence of the debt claimed under the statutory demand – where applicant filed and served supporting material after the 21 day period prescribed by s459G of the Corporations Act 2001 (Cth) – whether the statutory demand should be set aside
Corporations Act 2001 (Cth)
Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215, cited
Broke Hills Estate Pty Ltd v Oakvale Wines Pty Ltd [2005] NSWSC 638, applied
Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49, applied
Graywinter Properties Pty Ltd v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452, cited
Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd [1995] 2 Qd R 521, applied
Sabemo Pty Ltd v de Groot (1991) 8 BCL 132, cited
Saferack Pty Ltd v Marketing Heads Australia Pty Ltd (2007) 214 FLR, appliedCOUNSEL:
P O’Shea SC and P Travis for the applicant
S B Whitten for the respondentSOLICITORS:
Creevey Russell Lawyers for the applicant
Connollys Lawyers for the respondent
By a building contract dated 8 May 2007, and generally in the form of the
ABIC MW-1 2003 Major Works Contract, the applicant, as owner, contracted with the respondent, as contractor, for the construction of a resort complex at
Agnes Waters. The contract price, before adjustments allowed for under the contract, was some $19,000,063 (inclusive of GST). The contract nominated a specific architect to administer the contract.
Special Condition N4, in Schedule 2 to the contract, set out the scheme for progress payments under the contract. Conformably with contracts of this nature, it…
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- AGLC
- Mayaman Developments Pty Ltd v TQ Constructions Pty Ltd [2009] QSC 144
- Case
- [2009] QSC 144
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court was whether the statutory demand should be set aside by the applicant. The applicant argued that there was a genuine dispute about the existence of the debt claimed, and the amount claimed was excessive. Additionally, the applicant had filed and served supporting material outside the 21-day period prescribed by section 459G of the Corporations Act 2001 (Cth). The court had to determine whether these factors warranted setting aside the statutory demand.
The court examined the statutory demand's requirements and found that while the applicant had a genuine dispute about the amount claimed, the statutory demand should not be set aside merely because of an excessive claim amount. The court also noted that the applicant had served supporting material outside the prescribed period, but this alone did not justify setting aside the demand. The court varied the amount claimed in the statutory demand to $747,686.40, reflecting the unpaid certified progress claims. This decision balanced the statutory demand process with the need to resolve genuine disputes between the parties.
In conclusion, the court ordered that the statutory demand issued by the respondent to the applicant be varied by amending the amount claimed to $747,686.40, and it was not set aside. This outcome ensured that the respondent could pursue the amount due according to the certified progress claims, while acknowledging the applicant's concerns about the dispute over the exact amount owed.
Orders
Orders of the court
1. That the statutory demand dated 20 November 2008 issued by the respondent to the applicant be varied by amending the amount claimed there under to be $747,686.40
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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