Mulherin Rigging & Cranes Australia Pty Ltd v Roberts and Schaefer Australia Pty Ltd

The plaintiff, Mulherin Rigging & Cranes Australia Pty Ltd, brought a proceeding against the first and second defendants, Roberts and Schaefer Australia Pty Ltd, before the Queensland Supreme Court. The plaintiff sought to recover a sum of money from the second defendant, which had been paid into court pursuant to a notice of charge under the Subcontractors' Charges Act 1974 (Qld). The plaintiff sought to amend its statement of claim to increase the amount claimed by it to include goods and services tax (GST). The first defendant submitted that the charge was extinguished in respect of the difference between the amount paid into court and the amount claimed by the plaintiff. The court was required to determine whether the plaintiff's claim for a lower amount rather than the full amount paid into court had the effect of extinguishing the charge for the amount of the difference, whether the amendment of the sum claimed revived the charge, and whether GST can be the subject of a charge under the Act.

The court held that the plaintiff's claim for a lower amount than the full amount paid into court did not extinguish the charge for the amount of the difference. The court found that the notice of charge served on the second defendant was effective to create a charge on the money paid into court and that the charge remained until the plaintiff obtained a final judgment. The court further held that the amendment of the sum claimed did not revive the charge. The court found that the amendment of the statement of claim did not alter the amount of the charge, which was fixed by the notice of charge served on the second defendant. Finally, the court held that GST can be the subject of a charge under the Act. The court found that the Act did not exclude GST from the definition of "chargeable amount" and that the charge could include GST.

The orders of the court were that further submissions as to the form of the orders and as to costs were to be heard. The court did not make any orders on the substantive issues in the proceeding, as it was waiting for further submissions from the parties on those issues. The court's decision clarified the law on the effect of a lower claim on a charge, the revival of a charge by amending the claim, and the inclusion of GST in a charge under the Subcontractors' Charges Act 1974 (Qld).