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Penfold Projects Pty Ltd v Securcorp Limited

Penfold Projects Pty Ltd v Securcorp Limited

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Case Copied 18 May 2011 79 min read

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DISTRICT COURT OF QUEENSLAND

CITATION:

Penfold Projects Pty Ltd v Securcorp Limited [2011] QDC 77

PARTIES:

PENFOLD PROJECTS PTY LTD ACN 091 451 311

(Applicant)

v

SECURCORP LIMITED ACN 088 919 377

(Respondent)

FILE NO/S:

BD 811/2011

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2011

JUDGE:

Irwin DCJ

ORDER:

Application dismissed

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant and the respondent entered into a construction contract – where a Construction Manager was the third party to the contract – where in December 2010 and January 2011 the applicant sent by email to the Construction Manager documents addressed to the respondent care of the Construction Manager – where those documents were headed as “Progress Claim” and contained the statement, “This is a progress claim under the Building and Construction Industry Payments Act 2004” – where neither claim had been paid in part or in full by the respondent – where there was evidence on behalf of the respondent that the applicant at no time served, delivered or in any other way provided a copy of the claims to the respondent and that the Construction Manager at no time provided to both the applicant and the respondent, a progress certificate as required by the Contract – where the applicant sought orders that the respondent pay it $276,782.01 as a debt owing pursuant to s 19(2)(a)(i) of the Building and Construction Industry Payments Act 2004 together with interest – whether the December 2010 and January 2011 claims were payment claims for the purpose of s 17 of the Act – whether the claims were validly served on the respondent under s 17(1) of the Act – whether the payment claims could be validly served on the respondent by service on the Construction Manager as its agent – whether the construction contract provided a way in which a payment claim could be served on the respondent for the purposes of
s 103(1) of the Act – whether the Construction Manager was the respondent’s authorised agent for the service of payment claims under the Act, and in particular under s 17(1) of the Act – whether the respondent had been served by the payment claims coming to its attention – whether service by email sufficient.

Acts Interpretation Act 1954 (Qld), s 39

Building and Construction Industry Payments Act 2004 (Qld), s 3, s 5, s 7, s 8, s 10, s 12, s 13, s 15, s 17, s 18, s 19, s 20, s 21, s 100, s 103, Sch 2

Building and Construction Industry Security of Payment Act 1999 (NSW) s 3, s 13, s 31

Building and Construction Industry Security of Payment Act 2002 (Vic), s 14(1), s 50(1)

Corporations Act 2001 (Cth), s 109X

Electronic Transactions (Qld) Act 2001, s 7A, s 11(2), Sch…

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: [2011] QDC 77
Decision Date: 18 May 2011

CaseChat Overview and Summary

Penfold Projects Pty Ltd (the applicant) sought to recover an outstanding debt from Securcorp Limited (the respondent) under the Building and Construction Industry Payments Act 2004 (the Act). The applicant and the respondent were parties to a construction contract, with a Construction Manager as a third party involved in the contract. The applicant had submitted two progress claims in December 2010 and January 2011 via email to the Construction Manager, addressed to the respondent. These claims were marked as progress claims under the Act. Despite these submissions, the respondent had not paid any part of the claims, and the Construction Manager had not issued the required progress certificates. The applicant sought an order for the respondent to pay the amount of $276,782.01 plus interest.

The court needed to determine if the December 2010 and January 2011 claims were valid payment claims under the Act. It also had to decide if these claims were properly served on the respondent under the Act's provisions. Additionally, the court needed to ascertain whether the Construction Manager could be considered the respondent's agent for the service of these claims, and if the respondent had been properly served by the claims being brought to its attention. The court further examined whether service of these claims by email was adequate. The court also considered whether the construction contract had provided a method for serving the payment claims on the respondent under the Act.

The court found that the December 2010 and January 2011 claims were not valid payment claims under the Act because they were not properly served on the respondent. The court held that neither the Construction Manager nor the method of service via email was sufficient to validate the claims. The court also found that the respondent had not been served by the payment claims coming to its attention, and that the service by email was not adequate. Consequently, the court dismissed the application, and no orders were made in favour of the applicant.

Orders

Orders of the court

Application dismissed

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:	Penfold Projects Pty Ltd v Securcorp Limited [2011] QDC 77
PARTIES:	PENFOLD PROJECTS PTY LTD ACN 091 451 311 (Applicant) v SECURCORP LIMITED ACN 088 919 377 (Respondent)
FILE NO/S:	BD 811/2011
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	18 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 March 2011
JUDGE:	Irwin DCJ
ORDER:	Application dismissed
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant and the respondent entered into a construction contract – where a Construction Manager was the third party to the contract – where in December 2010 and January 2011 the applicant sent by email to the Construction Manager documents addressed to the respondent care of the Construction Manager – where those documents were headed as “Progress Claim” and contained the statement, “This is a progress claim under the Building and Construction Industry Payments Act 2004” – where neither claim had been paid in part or in full by the respondent – where there was evidence on behalf of the respondent that the applicant at no time served, delivered or in any other way provided a copy of the claims to the respondent and that the Construction Manager at no time provided to both the applicant and the respondent, a progress certificate as required by the Contract – where the applicant sought orders that the respondent pay it $276,782.01 as a debt owing pursuant to s 19(2)(a)(i) of the Building and Construction Industry Payments Act 2004 together with interest – whether the December 2010 and January 2011 claims were payment claims for the purpose of s 17 of the Act – whether the claims were validly served on the respondent under s 17(1) of the Act – whether the payment claims could be validly served on the respondent by service on the Construction Manager as its agent – whether the construction contract provided a way in which a payment claim could be served on the respondent for the purposes of s 103(1) of the Act – whether the Construction Manager was the respondent’s authorised agent for the service of payment claims under the Act, and in particular under s 17(1) of the Act – whether the respondent had been served by the payment claims coming to its attention – whether service by email sufficient. Acts Interpretation Act 1954 (Qld), s 39 Building and Construction Industry Payments Act 2004 (Qld), s 3, s 5, s 7, s 8, s 10, s 12, s 13, s 15, s 17, s 18, s 19, s 20, s 21, s 100, s 103, Sch 2 Building and Construction Industry Security of Payment Act 1999 (NSW) s 3, s 13, s 31 Building and Construction Industry Security of Payment Act 2002 (Vic), s 14(1), s 50(1) Corporations Act 2001 (Cth), s 109X Electronic Transactions (Qld) Act 2001, s 7A, s 11(2), Sch…