Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd - [2019] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd & Ors [2019] QSC 226

PARTIES:

Melaleuca View Pty Ltd (ACN 139 848 972)

(Applicant)

v
Sutton Constructions Pty Ltd (ACN 124 512 125) as Trustee for the Mal Sutton Family Trust

(First Respondent)

Phillip Martin
(Second Respondent)

Adjudication Registrar, Queensland Building and Construction Commission
(Third Respondent)

FILE NO/S:

BS No 6132 of 2019

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2019

JUDGE:

Brown J

ORDER:

The orders of the Court are:

1. The application be dismissed.

2. I will hear the parties as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant and first respondent entered into a contract for construction of townhouses - where the first respondent sent emails attaching invoices to the applicant on the 5^th and 15^th of February 2019 – where the applicant then sent an email to the first respondent in response to matters raised in the email of 15 February 2019 – where the adjudicator on application of the first respondent subsequently determined the applicant had not provided a payment schedule pursuant to s 69 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) and the first respondent was entitled to payment of an adjudicated amount by the applicant - where the applicant seeks to challenge by way of certiorari the decision of the adjudicator - whether the adjudicator made a jurisdictional error in finding that the applicant had failed to provide a payment schedule – whether there was jurisdictional error because the two payment claims served by the first respondent were invalid

Building and Construction Industry Payments Act 2004 (Qld), s 17
Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68, s 69, s 70, s 75

Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232, distinguished

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, applied

Heavy Plant Leasing Pty Ltd vMcConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386, applied

Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd & Ors [2007] QSC 333, applied

Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, followed

Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, followed

Spankie v James Trowse Constructions Pty Ltd [2010] QCA 355, applied

Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171, applied

T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381, followed

Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 65, considered

COUNSEL:

AJ Greinke for the applicant

RM De Luchi for the first…

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: [2019] QSC 226
Decision Date: 10 September 2019

CaseChat Overview and Summary

Melaleuca View Pty Ltd, the applicant, brought a challenge to the Queensland Civil and Administrative Tribunal against Sutton Constructions Pty Ltd, the first respondent, seeking to overturn a decision made by an adjudicator regarding the entitlement to payment under the Building Industry Fairness (Security of Payment) Act 2017 (Qld). The dispute arose from a contractual agreement for the construction of townhouses, with specific contentions over the provision of a payment schedule and the validity of certain payment claims. The court was tasked with determining whether the adjudicator had erred in concluding that the applicant had failed to provide a payment schedule and whether the payment claims were invalid.

The central legal issues revolved around the interpretation and application of sections 69 and 75(4) of the Act. The court needed to ascertain if the adjudicator made a jurisdictional error in finding that the applicant did not provide a payment schedule and whether any jurisdictional error existed due to the invalidity of the payment claims. The applicant argued that the adjudicator's decision was flawed, as the requirements for a valid payment schedule were not strictly adhered to, and the payment claims were invalid due to non-compliance with the Act.

The court found that the adjudicator did not err in determining that no payment schedule was provided, as the requirements of section 69 of the Act were not satisfied. It was held that the payment claims were not invalid, despite a contravention of section 75(4) of the Act, because they were given in respect of the reference date for practical completion. The court emphasised that while the absence of a payment schedule may appear stringent, the requirements of section 69 are straightforward and easily met. The court also noted that the Act aims to facilitate progress payments, and while payments are made on account, respondents retain their rights to challenge the amounts paid at law. Consequently, the application was dismissed, and the court directed that the parties would be heard regarding costs.

Orders

Orders of the court

The orders of the Court are:

1. The application be dismissed.

2. I will hear the parties as to costs.

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

Given my findings, I do not need to consider whether I would have withheld relief on the basis of an exercise of discretion had I otherwise found in favour of Melaleuca.Conclusion I find that:(a)The adjudicator did not err in determining that there was no payment schedule provided because the requirements in s 69 of the Act were not satisfied;(b)Payment claim 485 was not invalid due to a contravention of s 75(4) of the Act as it was given in respect of the reference date for practical completion and payment claim 480 was not. While the conclusion that the payment schedule did not satisfy the requirements of s 69 of the Act may be seen to be harsh, given that both invoices 480 and 485 were with respect to substantially the same work, s 69 is clear in its requirements and easily satisfied, as it could have been in the present case. Given the consequences that flow from a failure to provide a payment schedule under the Act, the onus is on the respondent to ensure it has complied with the requirements of s 69 of the Act, just as a claimant must provide a payment claim that accords with the Act. However, it must be borne in mind that the Act is to facilitate progress payments and any progress payment determined to be payable is only paid on account, such that the respondent to a claim still maintains their rights at law to ultimately challenge the amounts paid.[65][65]Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 63.Orders I order that the application be dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Melaleuca View Pty Ltd v Sutton Constructions Pty Ltd & Ors [2019] QSC 226
PARTIES:	Melaleuca View Pty Ltd (ACN 139 848 972) (Applicant) v Sutton Constructions Pty Ltd (ACN 124 512 125) as Trustee for the Mal Sutton Family Trust (First Respondent) Phillip Martin (Second Respondent) Adjudication Registrar, Queensland Building and Construction Commission (Third Respondent)
FILE NO/S:	BS No 6132 of 2019
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2019
JUDGE:	Brown J
ORDER:	The orders of the Court are: 1. The application be dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the applicant and first respondent entered into a contract for construction of townhouses - where the first respondent sent emails attaching invoices to the applicant on the 5^th and 15^th of February 2019 – where the applicant then sent an email to the first respondent in response to matters raised in the email of 15 February 2019 – where the adjudicator on application of the first respondent subsequently determined the applicant had not provided a payment schedule pursuant to s 69 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) and the first respondent was entitled to payment of an adjudicated amount by the applicant - where the applicant seeks to challenge by way of certiorari the decision of the adjudicator - whether the adjudicator made a jurisdictional error in finding that the applicant had failed to provide a payment schedule – whether there was jurisdictional error because the two payment claims served by the first respondent were invalid Building and Construction Industry Payments Act 2004 (Qld), s 17 Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68, s 69, s 70, s 75 Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232, distinguished Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, applied Heavy Plant Leasing Pty Ltd vMcConnell Dowell Constructors (Aust) Pty Ltd [2013] QCA 386, applied Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd & Ors [2007] QSC 333, applied Northbuild Constructions Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, followed Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340, followed Spankie v James Trowse Constructions Pty Ltd [2010] QCA 355, applied Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171, applied T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381, followed Watkins Contracting Pty Ltd v Hyatt Ground Engineering Pty Ltd [2018] QSC 65, considered
COUNSEL:	AJ Greinke for the applicant RM De Luchi for the first…