Peekhrst P/L v Wallace

[2007] QSC 159

SUPREME COURT OF QUEENSLAND

CITATION:

Peekhrst P/L v Wallace & Anor [2007] QSC 159

PARTIES:

PEEKHRST PTY LTD ACN 091 501 218
(applicant)
v
GLENZEIL PTY LTD ACN 010 465 166
(respondent)

PEEKHRST PTY LTD ACN 091 501 218
(applicant)
v
ANDREW BRUCE WALLACE
(first respondent)
GLENZEIL PTY LTD ACN 010 465 166
(second respondent)

FILE NO:

9945 of 2006
10486 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

6 July 2007

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

19 December 2006

JUDGE:

Douglas J

ORDER:

Applications dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Generally where review sought of decision made by adjudicator under Building and Construction Industry Payment Act 2004 – Whether proper acceptance of appointment of the adjudicator – Whether adjudication application served – Whether adjudicator satisfied himself that there was service of the adjudication application – whether adjudicator biased.

CORPORATIONS LAW – STATUTORY DEMAND – Application to set aside statutory demand for debts based on judgment obtained pursuant to Building and Construction Industry Payments Act 2004 – Where no application to set aside judgment obtained pursuant to s. 31(4) – Where no proceedings instituted pursuant to s. 100 – Where applicant delayed in submitting a list of defects – Whether in all the circumstances Court should exercise its discretion to set aside statutory demand.

Acts Interpretation Act 1954 s 39
Building and Construction Industry Payments Act 2004 ss 23, 31(4), 46(c), 100, 103
Corporations Act 2001 (Cth) ss 109X, 459J(1)(b)

Brodyn Pty Ltd v Davenport [2003] NSW SC 1019, applied
KW & KM Quinn Investments Pty Ltd v DCT [2003] QSC 336, considered
O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1, referred
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, referred
ReSoftex Industries Pty Ltd [2001] QSC 377, considered
Roadtek, Department of Main Road v Davenport [2006] QSC 47, considered

COUNSEL:

CD Coulsen for the applicant
KS Howe for the respondents

SOLICITORS:

Tucker & Cowen for the applicant
Hoy & McCormack for the respondent

1. Douglas J:  These are applications to set aside a statutory demand served by the respondent Glenzeil Pty Ltd on the applicant Peekhrst Pty Ltd on 30 October 2006 or alternatively for an order extending the time for compliance with that demand until seven days after the determination of judicial review proceedings of an adjudication determination made under the Building and Construction Industry Payments Act 2004 (“the Act”). The second application seeks judicial review of that determination. The grounds argued as to why judicial review should occur were that there was no proper service of the adjudication application, no acceptance of the appointment of the adjudicator, that the adjudicator had erred in failing to satisfy himself that there was service of the adjudication application and that the adjudicator demonstrated prejudgment and/or bias or at least failed to maintain impartiality or the appearance of impartiality.

1. The application to set aside the statutory demand was based on…