Park Avenue Constructions Pty Ltd v Sullivan - [2009] QDC 292

DISTRICT COURT OF QUEENSLAND

CITATION:

Park Avenue Constructions Pty Ltd v Sullivan [2009] QDC 292

PARTIES:

PARK AVENUE CONSTRUCTIONS PTY LTD ABN 34116851328

Applicant

v

SCOTT SULLIVAN

Respondent

FILE NO:

164 of 2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

10 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2009

JUDGE:

K S Dodds, DCJ

ORDER:

Judgment for the applicant against the respondent for $50,636 together with interest at the default interest rate under the contract from 9 June 2009 to judgment.

CATCHWORDS:

BUILDING CONTRACTS – where identical purported payment claims served – where date on second purported payment claim different from first – where both purported payment claims for same reference date – where respondent did not respond to either purported payment claim – application for judgment

Building and Construction Industry Payments Act 2004 s 7, s 8, s 12, s 13, s 15(2), s 17, s 18, s 19, s 20, s 26, s 29, s 30, s 31

Uniform Civil Procedure Rules 1999 r 9, r 11(a)

Doolan and Anor v Rubikcon (Qld) Pty Ltd and Ors [2007] QSC 168

RJ Neller Building P/L v Ainsworth [2008] QCA 397

Tailored Projects P/L v Jedfire P/L [2009] QSC 32

COUNSEL:

D Topp for the applicant

M Hindman for the respondent

SOLICITORS:

Greenhalgh Pickard Solicitors for the applicant

Sawford Voll Lawyers for the respondent

This is an application brought under the Building and Construction Industry Payments Act 2004 (the Act) for orders:

1. The applicant be at liberty to enter judgment against the respondent pursuant to section 19(2)(a) of the Act;
2. That in these proceedings the respondent not be entitled to bring any counterclaim against the applicant or raise a defence in relation to matters arising out of the construction contract pursuant to section 19(4)(b) of the Act;
3. Pursuant to rule 658 of the Uniform Civil Procedure Rules 1999 (UCPR) judgment be given for the applicant in the sum of $50,636 plus interest at the rate of 14.59% per annum pursuant to section 67P of the Queensland Building Services Authority Act 1991 and section 15(2) of the Act from 28 May 2009 for invoice numbers 1414/06, 1414/V02 and 1414/V003 to date of judgment or payment of the claimed amount and costs.
4. Further and in the alternative, pursuant to rule 658 of UCPR judgment be given for the applicant in the amount of $50,636 plus interest at the rate of 10% per annum pursuant to section 47 of the Supreme Court Act 1995 from 28 May 2009 for invoice numbers 1414/06, 1414/V02 and 1414/V003 to date of judgment or payment of the claimed amount and costs.
5. Costs.

The applicant and the respondent entered into a construction contract on 13 December 2007. It was an HIA standard form New Home Construction Contract. Pursuant to the contract the applicant was to construct a single story rendered home for the respondent. Work commenced on or about August 2008.

The Contract

The contract provided…

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: [2009] QDC 292
Decision Date: 10 September 2009

CaseChat Overview and Summary

The parties in this case are Park Avenue Constructions Pty Ltd (applicant) and Sullivan (respondent). The dispute concerns an application for judgment in the Supreme Court of Queensland regarding a building contract. The applicant claims that the respondent did not respond to two identical payment claims, thus entitling the applicant to a judgment by default. The respondent did not defend the proceeding, leading to the applicant's application for judgment.

The primary legal issue before the court was whether the applicant was entitled to judgment by default due to the respondent's failure to respond to two identical purported payment claims. The court had to determine whether the differences in the dates on the claims affected their identical nature and whether the respondent's silence constituted a failure to respond. The court also needed to decide if the application for judgment was properly brought under the applicable legislation.

The court found that despite the differences in the dates on the two payment claims, they were essentially identical in terms of the reference date and the amount claimed. The court held that the respondent's failure to respond to either of the identical claims meant they did not effectively respond to either. Consequently, the court granted the applicant's application for judgment. The court ruled that the differences in the dates did not negate the identical nature of the claims and that the respondent's inaction was a failure to respond.

The court ordered judgment for the applicant against the respondent for the amount of $50,636, together with interest at the default interest rate under the contract from 9 June 2009 until the date of judgment. The respondent was also ordered to pay the applicant's costs of the proceeding.

Orders

Orders of the court

Judgment for the applicant against the respondent for $50,636 together with interest at the default interest rate under the contract from 9 June 2009 to judgment.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Park Avenue Constructions Pty Ltd v Sullivan [2009] QDC 292
PARTIES:	PARK AVENUE CONSTRUCTIONS PTY LTD ABN 34116851328 Applicant v SCOTT SULLIVAN Respondent
FILE NO:	164 of 2009
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	10 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2009
JUDGE:	K S Dodds, DCJ
ORDER:	Judgment for the applicant against the respondent for $50,636 together with interest at the default interest rate under the contract from 9 June 2009 to judgment.
CATCHWORDS:	BUILDING CONTRACTS – where identical purported payment claims served – where date on second purported payment claim different from first – where both purported payment claims for same reference date – where respondent did not respond to either purported payment claim – application for judgment *Building and Construction Industry Payments Act 2004* s 7, s 8, s 12, s 13, s 15(2), s 17, s 18, s 19, s 20, s 26, s 29, s 30, s 31 *Uniform Civil Procedure Rules 1999* r 9, r 11(a) *Doolan and Anor v Rubikcon (Qld) Pty Ltd and Ors* [2007] QSC 168 *RJ Neller Building P/L v Ainsworth* [2008] QCA 397 *Tailored Projects P/L v Jedfire P/L* [2009] QSC 32
COUNSEL:	D Topp for the applicant M Hindman for the respondent
SOLICITORS:	Greenhalgh Pickard Solicitors for the applicant Sawford Voll Lawyers for the respondent