Parker Bros Constructions P/L v Hancock

[2001] QCA 397

[2001] QCA 397

COURT OF APPEAL

de JERSEY CJ
CHESTERMAN J
MULLINS J

Appeal No 7259 of 2001

PARKER BROS CONSTRUCTIONS
PTY LTD  Appellant (Applicant)

and

GEOFFREY HANCOCK and 
GAIL HANCOCK trading as                 First Respondents
G E HANCOCK & CO  (First Respondents)

and

COUNCIL OF THE CITY OF LOGAN            Second Respondent
  (Second Respondent)

BRISBANE

..DATE 24/09/2001

JUDGMENT

THE CHIEF JUSTICE: The applicant seeks leave to appeal, just out of time, against a learned District Court Judge's refusal to cancel a claim of charge. Two grounds were ventilated here in support of the application for leave. The first was that the first respondents failed to comply with section 10, subsection 1, paragraph (b) of the Subcontractors' Charges Act 1974.

That provision requires that a subcontractor claiming a charge "shall give notice of having made the claim to the contractor to whom the money is payable".  In this case the first respondents' solicitors forwarded a copy of the notice of intention to claim charge to the applicant contractor.

That amounted to notice to that contractor that the claim had been made, sufficient in my view for the purposes of the section.  The contractor could have been under no misapprehension but that notice of claim of charge had been given.

As to the failure to utilise a particular form, one observes that there is no particular statutory requirement in that regard, and that section 10 subsection 5, referring to the form of a notice of claim of charge, is in any event cast in language which is permissive.

The second ground was that the first respondents were not
contractually bound to perform "work" in respect of the land, within the scope of section 5 subsection 1.  To warrant cancellation of the charge summarily, it fell to the applicant to demonstrate that plainly.  It appears that the applicant was contractually obliged to remove the spoil from the site and that it used the first respondent to do so.

That the applicant may have acquired ownership of the spoil would appear to me to be of only incidental and peripheral relevance.  The important circumstance was that vis-a-vis the respondent Council, the applicant was contractually bound to take the spoil away, a task which it subcontracted to the first respondents.

Those circumstances told against the summary cancellation of the charge, the validity of which may remain to be ventilated further in the District Court action which has been commenced.  In my view, no ground has been established warranting a grant of leave and I would refuse the application.

CHESTERMAN J:  I agree.

MULLINS J:  I agree.

THE CHIEF JUSTICE:  The application is refused with costs to be assessed.

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