Mayaman Developments Pty Ltd v TQ Constructions Pty Ltd

[2009] QSC 144

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, applied

COUNSEL:

P O’Shea SC and P Travis for the applicant
S B Whitten for the respondent

SOLICITORS:

Creevey Russell Lawyers for the applicant
Connollys Lawyers for the respondent

1. 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.

1. 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…