Northpine (Australia) Pty Ltd v National Buildplan Group & the Crown State of Queensland

[2013] QCAT 727

CITATION: Northpine (Australia) Pty Ltd v National Buildplan Group & the Crown State of Queensland [2013] QCAT 727

PARTIES:	Northpine (Australia) Pty Ltd (Applicant)
v
National Buildplan Group & the Crown State of Queensland (Respondents)

APPLICATION NUMBER: MCDO1886/13

MATTER TYPE: Other minor civil dispute matter

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 28 November 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application in so far as it relates to “the Crown State of Queensland” is struck out.

CATCHWORDS: Construction – practical completion of works – claim pursuant to Subcontractors Charges Act 1974 – validity of notice of claim – jurisdiction under Subcontractors Charges Act 1974 – basis of contractual relationship – striking out application for lack of jurisdiction.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. By application filed 16 September 2013 the applicant Northpine (Australia) Pty Ltd (Northpine) seeks the sum of $24,075.92 from “National Buildplan Group and the Crown State of Queensland” being payment due for mechanical works performed by it in the course of construction of the Caboolture TAFE Library.  The claim against National Buildplan Group appears to rely on a purchase order issued 20 March 2012 for mechanical works and as against the State of Queensland on a form 1 notice of claim of charge issued under the Subcontractors Charges Act 1974 (the Act). 

2. The State of Queensland apart from filing a response to the application in which it asserted the two notices of claim of charge were invalid and denied any contractual relationship with Northpine, filed on 23 October 2013 an application to dismiss/strike out Northpine’s application as against it. On 6 November 2013 the Tribunal ordered the application to dismiss/strike out be sent to Northpine which was then to provide submissions in response by 20 November 2013. The application to dismiss/strike out was then to be determined on the papers after 20 November 2013. The initiating application was then otherwise adjourned pending determination of the application to dismiss/strike out or until further order. Those orders took into account Northpine’s adjournment application filed 31 October 2013. 

3. National Buildplan Group (Buildplan) was the head contractor i.e. the contractor that contracted with the State of Queensland for the construction of Caboolture TAFE Library.  Northpine was a subcontractor to Buildplan. 

4. A notice of claim of charge (first notice) dated 12 June 2013 was served on the State of Queensland on 18 June 2013.  This notice recorded works as having been carried out in the period “June 2012 and October 2012”.  The State of Queensland asserted the first notice invalid not being served within the time required pursuant to section 10(2) Subcontractors Charges Act 1974 (the Act) i.e. within three months of completion of works.  There was no material, evidence or assertions disputing the invalidity of the first notice. 

5. A notice of claim of charge (the second notice) dated 10 July 2013 was served on the State of Queensland on 12 July 2013.  This notice recorded works as having been carried out in the period “June 2012 and current”.  The accompanying certificate of qualified person was defective in that it was the very same certificate as attached to the first claim and purported to “have examined this claim” (in effect the second claim dated 10 July 2013).  Additionally, once again, the State of Queensland asserted the second notice invalid not being served within the statutory timeframe. 

6. A certificate of practical completion for construction of the Caboolture TAFE Library was issued on 14 November 2012 certifying completion on 7 November 2012.

7. The State of Queensland objected to the Tribunal’s jurisdiction to hear this application in any event relying on the definition of “Court” in section 3 of the Act as follows:

   Court means the Court in which a proceeding may be taken pursuant to this Act and includes a Judge of the Supreme Court, District Court Judge or, as the case requires, a Magistrate.

8. It is clear that the Tribunal is not a Court for the purpose of determining Northpine’s claim brought against State of Queensland pursuant to the Act. 

9. The initiating application in so far as it pursues payment from the State of Queensland relies on the second notice in particular.  There is no assertion or evidence of any direct contractual relationship as between Northpine and the State of Queensland.

Conclusions

1. The date of practical completion of the works is not disputed.  The dates of issue and service of the notices of claim of charge are not disputed.  Accepting all relevant dates as asserted by State of Queensland both notices are clearly out of time and invalid.  Defective certificate of qualified person applicable to the second notice is not disputed.  The second notice is the notice primarily relied upon by Northpine to assert a liability on the part of State of Queensland.

2. Northpine’s claim against State of Queensland relies on the second notice issued pursuant to the Act which makes it clear that jurisdiction is vested in a Court of competent civil jurisdiction, in this case the Magistrates Court.

3. There is no evidence of any direct contractual relationship between Northpine and State of Queensland.

4. The initiating application insofar as it relates to State of Queensland is struck out.