McCarthy v State of Queensland

McCarthy lodged an appeal against the respondent, the State of Queensland, concerning a dispute over a construction contract. McCarthy claimed $272,987 for under-measures on the Bill of Quantities in its 17th payment claim under section 17 of the Building and Construction Industry Payments Act 2004 (Qld). The State of Queensland argued that the claim contravened section 17(5) of the Act as it related to work already claimed and paid for in earlier reference dates. McCarthy maintained that these matters had not been included in any prior claim. The State of Queensland did not serve a payment schedule on McCarthy as required under section 18 of the Act. Section 19 of the Act provided McCarthy with a prima facie right to judgment for the unpaid amount of its claim if the State of Queensland failed to serve a payment schedule. The primary judge declined to determine whether payment claim 17 contravened section 17(5) of the Act and dismissed McCarthy's application for summary judgment under rule 292 of the Uniform Civil Procedure Rules 1999 (Qld).

The court had to decide whether payment claim 17 contravened section 17(5) of the Act and whether summary judgment should be granted. The appeal raised questions about whether the primary judge correctly refused to make a finding as to whether the payment claim infringed section 17(5) of the Act and whether the primary judge correctly dismissed the application for summary judgment. The court had to consider the relevant statutory provisions and their application to the facts of the case.

The court found that the primary judge erred in not making a finding as to whether payment claim 17 contravened section 17(5) of the Act. The court held that the primary judge should have determined whether the payment claim was valid, as the State of Queensland's failure to serve a payment schedule under section 18 of the Act gave McCarthy a prima facie right to judgment for the unpaid amount of its claim under section 19 of the Act. The court found that the primary judge should have granted summary judgment in McCarthy's favour. The court allowed the appeal, set aside the orders of the primary judge, and ordered the State of Queensland to pay McCarthy $272,987 together with interest at 10 per cent per annum from 19 September 2012, and the costs of the appeal on the standard basis. The parties have five days to file and serve written submissions in relation to the award of interest.