Multiplex Constructions P/L v Abigroup Contractors P/L

[2004] QCA 266

SUPREME COURT OF QUEENSLAND

CITATION:

Multiplex Constructions P/L & Anor v Abigroup Contractors P/L & Anor [2004] QCA 266

PARTIES:

MULTIPLEX LIMITED (formerly MULTIPLEX CONSTRUCTIONS PTY LTD)
ABN 97 008 687 063
(first applicant/first respondent)
WATPAC AUSTRALIA PTY LTD
ABN 71 010 462  816
(second applicant/second respondent)
v
ABIGROUP CONTRACTORS PTY LTD
ABN 40 000 201 516
(first respondent/applicant)
THE CROWN in the right of the STATE OF QUEENSLAND through the DIRECTOR GENERAL, DEPARTMENT OF PUBLIC WORKS
(second respondent)

FILE NO/S:

Appeal No 6432 of 2004
SC No 2909 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

29 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2004

JUDGE:

Davies JA

ORDER:

1.    Application for stay of execution granted.
2.    Order made in terms of document described as a       consent order signed by both parties

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - OTHER MATTERS - where the applicant and the respondents were parties to a contract - where the applicant claimed charges under the Subcontractors' Charges Act 1974 (Qld) pursuant to a contractual clause between the parties - where the learned primary judge gave judgment reducing the charges - where monies were paid into court as security - where the applicant seeks a stay of execution of the order until the determination of the appeal - whether the Court's discretion should be exercised in the applicant's favour in the circumstances

Subcontractors' Charges Act 1974 (Qld), s 5, s 21

COUNSEL:

J K Bond SC for the applicant
P A Hastie for the respondents

SOLICITORS:

Allens Arthur Robinson for the applicant
Minter Ellison for the respondents

DAVIES JA:  This is an application for a stay as indicted by Mr Bond in his brief submissions just now.  As I indicated to Mr Bond, I am inclined to grant the stay, but as it involves the exercise of my discretion, I should state my reasons for that briefly.

The applicant for the stay was a subcontractor for work carried out by the Lang Park Development Joint Venture.  On
14 November 2003 it claimed and gave notice of claiming a charge pursuant to s 5 of the Subcontractors Charges Act for money owing for work carried out between 24 April 2002 and
14 November 2003 on that development.  They had previously claimed three other charges pursuant to the same section. 
The charge claimed on 14 November 2003 contained costs alleged to have been incurred under an acceleration clause contained in the contract between the parties.

The respondents to this stay, Multiplex Constructions and Watpac Australia, applied to the Supreme Court pursuant to
s 21 of the Act for orders cancelling or modifying the charge. The respondents denied owing further costs under the acceleration clause. The acceleration clause is clause 33.5 of the contract and I do not propose to set it out in these brief reasons.

On 25 June 2004 the Supreme Court found in favour of the respondents on this issue and ordered that the charge be modified.  The learned primary judge found insufficient evidence to support an implied direction, from the respondents to Abigroup, to accelerate their work.  As a result the charge, which reflected alleged costs incurred due to acceleration, was ordered to be reduced by a little over $6 million.

The applicant appeals against this part of the order of the Supreme Court and seek an order to continue a temporary stay granted by Justice Chesterman over the moneys which have been paid into Court for the charges. 

As I mentioned, the respondents are willing to consent and it is plain from that that no disadvantage is shown to affect them if the stay were granted.  On the other hand, the applicant claims that it will suffer disadvantages if the stay is not granted and it is plain to me that that is correct.

It is not so plain to me that the applicant has shown a good arguable case on appeal, but it seems to me that the factors which justify the granting of the stay and the disadvantages which the applicant suffers are sufficient in the exercise of my discretion in these circumstances, particularly as the respondent has suffered no disadvantage, to grant the stay ordered.

I will therefore make an order in terms of the document which is described as a consent order signed by both of the parties.  I will initial that and place it with the papers and the file.