McMaster Pty Ltd and Redcliffe City Council

SUPREME COURT OF QUEENSLAND

CITATION:

McMaster Pty Ltd and Redcliffe City Council [2000] QSC 092

PARTIES:

McMASTER PTY LTD ACN 011 059 073
(plaintiff)
and
REDCLIFFE CITY COUNCIL
(defendant)

FILE NO:

1805 of 2000

DIVISION:

Trial Division

DELIVERED ON:

26 April 2000

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2000

JUDGE:

Mackenzie J

ORDER:

1.  I give judgment that the respondent defendant pay the applicant plaintiff the sum of $520,397.20 as moneys due and payable pursuant to the contract together with interest on that sum from 29 February 2000 to the date of judgment.
2.  I order that the respondent pay the applicant's costs of and incidental to the application and the claim to be assessed.

CATCHWORDS:

CONTRACT – BREACH – time for payment of moneys due and owing under construction contract – time for issue of payment certificate – whether superintendent had been validly appointed.

Re Concrete Constructions group Pty Ltd (1997) 1QdR6
Algons Engineering Pty Ltd v Abigroup Contractors Pty Limited (1997) 14 BCL 215
Triden Contractors Pty Ltd v Belvista Pty Ltd (1987) 3 BCL 203

COUNSEL:

J Bond SC for plaintiff
P McMurdo QC and D Bates for defendant

SOLICITORS:

Clayton Utz for plaintiff
McCulloough Robertson for defendant

1. MACKENZIE J:  This is an application for entry of judgment for moneys allegedly due and owing under a contract.  The facts are uncontroversial.  The applicant (the contractor) contracted with the respondent (the principal) to demolish the Redcliffe Jetty and build a new jetty in its place.  The superintendent named in the contract received the relevant progress claim from the respondent on 31 January 2000.  On 9 February 2000 the superintendent's appointment was terminated.

1. The contract is in the form of General Conditions of Contract (AS2124-1992).  Clause 23 required the principal to ensure at all times that there was a superintendent.  Clause 24 permitted the superintendent to appoint an individual to exercise functions of the superintendent under the contract. 

1. In respect of claims by the contractor it was the function of the superintendent under cl 42 to issue to the principal and contractor within 14 days after receipt of the claim by the superintendent, a payment certificate stating the amount of payment which in the superintendent's opinion was to be made.  Clause 42 also provides as follows:

"Subject to the provisions of the Contract, within 28 days after receipt by the Superintendent of a claim for payment or within 14 days of issue by the Superintendent of the Superintendent's payment certificate, whichever is the earlier, the Principal shall pay to the Contractor or the Contractor shall pay to the Principal, as the case may be, an amount not less than the amount shown in the Certificate as due to the Contractor or to the Principal as the case may be, or if no payment certificate has been issued the Principal shall pay the amount of the Contractor's claim.  A payment made pursuant to this Clause shall not prejudice the right of either party to dispute under Clause 47 whether…