Petroleum Engineering v Alexander
[2014] QMC 5
•4 March 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Petroleum Engineering v Alexander [2014] QMC 5
PARTIES:
PETROLEUM ENGINEERING & CONSTRUCTIONS COMPANY PTY LTD
(plaintiff)
v
IAN ALEXENDER
(defendant)
FILE NO/S:
M296/12
DIVISION:
Magistrates Courts
PROCEEDING:
Claim – Application for summary judgment – Cross applications
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
4 March 2014
DELIVERED AT:
Toowoomba
HEARING DATE:
13 February 2014
MAGISTRATE:
Carroll JD
ORDER:
(i) Paragraphs 2C, 2E, 3, 4, 5 and 5A of the plaintiff’s Further Amended Statement of Claim be struck out;
(ii) The plaintiff pay the defendant’s costs of the defendant’s application to be assessed or agreed;
(iii) That within 21 days from today, the plaintiff file and serve a Further Amended Statement of Claim, failing which it’s claim is struck out;
(iv) The plaintiff pays the defendant’s costs of the plaintiff’s application to be assessed or agreed.
CATCHWORDS:
CIVIL LAW – PRACTICE AND PROCEDURE – Application for summary judgment
Uniform Civil Procedure Rules 1999, r 292, r293, r 171
Building and Construction Industry Payments Act 2004, s 19(4)
COUNSEL:
Van de Beld for the plaintiff
Handran for the defendant
SOLICITORS:
BM Law for the plaintiff
Murdoch Lawyers for the defendant
The Applications
On 13 February 2014 two cross applications came before the court.
The application filed first in time, on 16 August 2013, is by the defendant seeking the following orders:-
(i) That pursuant to Rule 293 of the Uniform Civil Procedure Rules 1999 there be judgment for the defendant against the plaintiff.
(ii) In the alternative, that pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999:
(a)Statement of Claim filed 13 December 2012 (SOC) be struck out; or
(b)Alternatively, that paragraphs 2, 3, 4, 5, 6 and 7 of the SOC be struck out.
(iii)The application also sought an order for costs against the plaintiff.
The second or cross application filed by the plaintiff on 3 February 2014 seeks orders that the defendant’s application filed on 16 August 2013 be dismissed. Secondly, that pursuant to Rule 292 of the Uniform Civil Procedure Rules 1999 and or s 19(4) of the Building and Construction Industry Payments Act 2004, judgment be entered in favour of the plaintiff against the defendant for all of the plaintiff’s claim. The plaintiff also sought a cost order against the defendant.
I will deal firstly with the defendant’s application.
Mr Handran, for the defendant, read the following material:-
(i) Application filed 16 August 2013;
(ii) Affidavit of Craig John SHEPPARD filed 23 September 2013;
(iii) Further amended Statement of Claim (Further Amended Statement of Claim) filed 3 November 2013;
(iv) Amended Defence file 24 July 2013.
Mr van de Beld of Counsel appeared for the plaintiff.
The Dispute between the Parties
The plaintiff’s claim is for $43,477.50 for services provided by it to the defendant at the defendant’s request, and interest thereon.[1]
[1]Claim filed 13 Dec 2012
The plaintiff is in the business of designing and installing petroleum and fuel storage and dispensing systems.[2]
[2]Para 1(b) of the Further Amended Statement of Claim. (FURTHER AMENDED STATEMENT OF CLAIM)
The defendant was the owner, or held himself out to be the owner, of a service station located on the corner of the Warrego Highway and Colamba Street, Chinchilla.[3]
[3]Par 1A of the Further Amended Statement of Claim
On or about 2 February 2011, Mr Graham Bell, Director of the Plaintiff, met with the defendant at McDonalds at Aspley to discuss the design of the fuel system for the rebuild of the defendant’s service station and the installation / construction of the fuel system.[4]
[4]Para 1B of the Further Amended Statement of Claim
The plaintiff alleges that in or about February 2011 it contracted with the defendant that it would prepare the Design for which the defendant would pay the plaintiff $25,000.[5]
[5]Para 2B of the Further Amended Statement of Claim
The plaintiff alleges that on or about 16 February 2011, it prepared a draft design and forwarded same to the defendant.[6] It further alleges that between February 2011 and April 2012 the defendant requested a variation to the Design including a redesign and redraw of the truck refuelling area and new position; a change in the drawing to include a 10,000 litre AD Blue tank, lines pump units and electrical; and the upgrading of the LPG dispenser to a six hose and relocation of same to a new position.[7] Between 28 March 2012 and 18 April 2012 the plaintiff provided such varied design to the defendant.[8] “The first variation”.
[6]Para 2D (a) of the Further Amended Statement of Claim
[7]Para 2D (b) of the Further Amended Statement of Claim
[8]Para 2D (c) of the Further Amended Statement of Claim
On 7 July 2011 the plaintiff forwarded to the defendant an estimate of prices for the project. So far as is relevant, the email advises as follows:
“7 July 2011
Mr Ian Alexander
Dear IanI’m working on individual pricing of each phase of the project. An approximate costs is set out below:
· Drawings / design, site meetings $25,000
· ….
When you have the new layout can you forward to me so we can re-design the diesel truck refuelling area…
Yours faithfully”
The plaintiff alleges that in January 2012 the defendant requested a further variation to the contract, namely that the plaintiff locate and inspect an underground LPG tank.[9] “The further variation request.”
[9]Para 2D (d) of the Further Amended Statement of Claim
The plaintiff alleges that in January 2012 it located and inspected an underground fuel tank at the Gold Coast.[10] “The second variation”
[10]Para 2D (e) of the Further Amended Statement of Claim
The plaintiff alleges that the contract it made with the defendant was for “construction work” and or “related goods and services” pursuant to the Building and Construction Industry Payments Act 2004 (“the Act”), and the contract was a “Construction Contract” pursuant to the Act.[11]
[11]Para 2C of the Further Amended Statement of Claim
The plaintiff alleges that in the premises outlined above, it was entitled to a “progress payment”, as that term is defined in the Act, from the defendant.[12]
[12]Para 2E of the Further Amended Statement of Claim
On or about 13 November 2012, by electronic mail, the plaintiff alleges that it served on the defendant a Payment Claim pursuant to the Act, for the design, first variation and second variation.[13]
[13]Para 3 of the Further Amended Statement of Claim
The invoice or payment claim of 13 November 2012 is a significant document for the purpose of this Application and for that reason I will set out the relevant details in full:
| “Description “AMENDED INVOICE – 13.11.2012 ALL CONSULTATIONS WITH IAN ALEXANDER RELATING TO DESIGN OF FUEL SYSTEM FOR THE REBUILD OF THE EXISTING SERVICE STATION CNR WARREGO HIGHWAY AND COLAMBA ST CHINCHILLA QLD AS PER OUR MEETING AT MCDONALDS ASPLEY AND AS PER OUR ESTIMATED COST OF THE 7TH JULY 2011, (EMAIL TO IAN ALEXANDER 7/7/2011). COST TO COMPLETE DRAWINGS NO P007 RO, P008 RO, P009 RO, PO10 RO, GIVEN TO IAN ALEXANDER AT TOOWOOMBA ON 29/3/11 | Amount $25,000.00 | Code GST |
| VARIATIONS 1. REDESIGN AND REDRAW TRUCK REFUELLING AREA IN NEW POSITION AFTER FLOODING IN CHINCHILLA, CHANGE DRAWING TO INCLUDE A 10,000 LITRE AD BLUE TANK, LINES, PUMP UNITS, ELECTRICAL. UPGRADE LPG DISPENSER TO 6 HOSE AND RELOCATE TO NEW POSITION. DRAW ADDITIONAL FUEL LINES TO 6 HOSE DISPENSER, DRAWINGS GIVEN TO IAN ALEXANDER AT MEETING AT COFFEE CLUB HAMILTON ON 18/4/12, DRAWINGS MUMBERS P007-2, P008-3, P009-3, P010-3, P011-1, P012-0 | $12,650.00 | GST |
| VARIATION 2 REQUESTED BY IAN ALEXANDER TO GRAHAM BELL, JANUARY 2012, TO LOCATE AN UNDERGROUND LPG TANK. LOCATED TANK ON GOLD COAST AND ADVISED BY IAN ALEXANDER TO INSPECT. INSPECTION CARRIED OUT 29/1/12 ON SITE. MET WITH DAVID BATCHELOR, SITE FOREMAN OF 4D INSTALLATIONS, AND CARRIED OUT INSPECTION OF TANK. REPORTED TO OUR LPG INSTALLER AND ADVISED THE TANK WILL HAVE TO BE RECONDITIONED, REPORTED FINDINGS TO IAN ALEXANDER, ALSO NUMEROUS PHONE CALLS TO BRIAN JACO, 03 95411386, OWNERS REP. TIME SPENT ON LPG TANK INVESTIGATION 10 HOURS BY GRAHAM BELL TRANSPORT, TOLLS, OUTGOINGS | $1,500.00 $375.00 | GST GST |
EFT DETAILS: SUNCORP BSB 484-799 ACCOUNT NO 084002350 NAME PECC
FAX ADVICE TO 07 3888 7633 THANKS
THIS CLAIM IS MADE UNDER THE BUILDING AND CONSTRUCTION INDUSTRY PAYMENT ACT 2004 QLD”
The invoice of 13 November 2012 amends the earlier invoice of 26 June 2012 in the detail provided but not in the itemised amounts nor in the total amount of $43,477.50.
The defendant alleges that if the parties are found to have entered into a construction contract, which is denied, then such contract was uncertain and thereby unenforceable. Alternatively it is subject to a condition precedent whereby the parties reach agreement as to rates and expense charges to be applied and no such agreement was ever reached.[14]
[14]Para 2.1 of the Amended Defence dated 24 July 2013
Further, in the alternative, the defendant alleges that if the parties are found to have entered into a “construction contract”, which is denied, then any such contract between the parties was abandoned on or about 7 June 2012. Particulars of that abandonment are to be inferred from, among other things, the following:-
(i) The email dated 6 June 2012 from the defendant, to Graham Bell on behalf of the plaintiff;
(ii) The email dated 7 June 2012 from Graham Bell on behalf of the plaintiff to the defendant;
(iii) Thereafter neither party took any steps to perform any such “construction contract” and neither party purport to terminate such contract for the other party’s breach within reasonable time.[15]
[15]Para 2.2 of the Amended Defence.
For the sake of completeness I set out below the relevant passages of the emails of 6 and 7 June 2012 referred to above, together with an email from Graham Bell to the defendant on 1 June 2012, which gives some context to those two emails.
Email from Graham Bell to the defendant on 1 June 2012:
“Hi Ian - Thanks for your email, was wondering how you were going as my electrician passed the site a couple of weeks ago and told me their (sic) was a bit of activity going on. Want (sic) I need to do is come to site and meet with you and the builder to run through program. I’m available next week or the week after to meet you, how are you situated.”
Email of 6 June 2012 from Defendant to Graham Bell:
“Graham, I don’t think you need to make a site visit until you have forwarded your current charge and expense rates and a rough estimation on weeks and men required to do work. The site has attracted a fair amount of interest from different contractors including fuel filters who were sent the same email as you requesting quotes and some have said there (sic) charge rates would be back this week. Please forward your current expense and rate charges. Regards Ian”
Email of 7 June 2012 from Graham Bell to the defendant:
“…seeing that you have now invited other fuel installers to price the project I will forward our invoice for the original design, redesign of the truck with fuelling area, the electrical design and procurement of the LPG tank, meeting costs with your designers and out of pocket expenses and meeting costs…. Graham Bell”
The plaintiff then sent an invoice on 26 June 2012 to the defendant.[16]
[16]Page 14 of Exhibit CJS-1 to the Affidavit of Craig John Sheppard sworn 23 Sept 2013.
The substance of the defendant’s defence to the claim under the Act is contained in paragraphs 3(e) and (f) of it’s Amended Defence dated 24 July 2013. They are set out below:
“(e)(The defendant alleges that) that:
(i)the plaintiff did not carry out any “construction work” or supply any “related goods or services” to him, as those phrases are used in the Act, after 6 June 2012:
(ii)on or about 26 June 2012, the plaintiff purported to serve a payment claim on the defendant;
(f)(The defendant) says that in the premises pleaded ….in this defence;
(i)the plaintiff did not have any “reference date” upon which to make any payment claim, as alleged;
(ii)the Plaintiff was not a person entitled to make (or claim) a progress payment under section 12 of the Act when purporting to serve any payment claim the subject of these proceedings; and
(iii)the purported “amended payment claim” was not a valid payment claim under the Act.”
Relevant Provisions of the Building and Construction Industry Payment Act 2004
Relevantly, the term “construction work” is defined in section 10(1)(a) of the Act to mean “the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of building or structures whether permanent or not, falling or to form part of land.
the term “related goods and services” is defined, in section 11(1) to mean as follows:
a.Goods of the following kind –
i.Plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of construction work;
b.Services of the following kind –
i.…
ii.Architecture, design, surveying or quantity surveying services relating to the construction work…”
12 Rights to progress payments
From each reference date under a construction contract, a person is entitled to a progress payment if the person has undertaken to carry out construction work, or supply related goods and services, under the contract.
13 Amount of progress payment
The amount of a progress payment to which a person is entitled in relation to a construction contract is—
(a) the amount calculated under the contract; or
(b)if the contract does not provide for the matter, the amount calculated on the basis of the value of construction work carried out or undertaken to be carried out, or related goods and services supplied or undertaken to be supplied, by the person, under the contract.
14Valuation of construction work and related goods and services
(1)Construction work carried out or undertaken to be carried out under a construction contract is to be valued—
(a) under the contract; or
(b) if the contract does not provide for the matter, having regard to—
(i) the contract price for the work; and
(ii) any other rates or prices stated in the contract; and
(iii)any variation agreed to by the parties to the contract by which the contract price, or any other rate or price stated in the contract, is to be adjusted by a specific amount; and
(iv) if any of the work is defective, the estimated cost of rectifying the defect.
(2)Related goods and services supplied or undertaken to be supplied under a construction contract are to be valued—
(a) under the terms of the contract; or
(b) if the contract does not provide for the matter, having regard to—
(i) the contract price for the goods and services; and
(ii) any other rates or prices stated in the contract; and
(iii)any variation agreed to by the parties to the contract by which the contract price, or any other rate or price stated in the contract, is to be adjusted by a specific amount; and
(iv)if any of the goods are defective, the estimated cost of rectifying the defect.
(3)For subsection (2)(b), for materials and components that are to form part of any building, structure or work arising from construction work, the only materials and components to be included in the valuation are those that have become or, on payment, will become the property of the party or other person for whom construction work is being carried out.
17 Payment claims
(1)A person mentioned in section 12 who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent).
(2) A payment claim—
(a)must identify the construction work or related goods and services to which the progress payment relates; and
(b)must state the amount of the progress payment that the claimant claims to be payable (the claimed amount); and
(c) must state that it is made under this Act.
(3) The claimed amount may include any amount—
(a)that the respondent is liable to pay the claimant under section 33(3); or
(b)that is held under the construction contract by the respondent and that the claimant claims is due for release.
(4) A payment claim may be served only within the later of—
(a) the period worked out under the construction contract; or
(b)the period of 12 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied.
(5)A claimant can not serve more than 1 payment claim in relation to each reference date under the construction contract.
(6)However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.
18 Payment schedules
(1)A respondent served with a payment claim may reply to the claim by serving a payment schedule on the claimant.
(2)A payment schedule—
(a) must identify the payment claim to which it relates; and
(b)must state the amount of the payment, if any, that the respondent proposes to make (the scheduled amount).
(3)If the scheduled amount is less than the claimed amount, the schedule must state why the scheduled amount is less and, if it is less because the respondent is withholding payment for any reason, the respondent’s reasons for withholding payment.
(4)Subsection (5) applies if—
(a) a claimant serves a payment claim on a respondent; and
(b)the respondent does not serve a payment schedule on the claimant within the earlier of—
(i) the time required by the relevant construction contract; or
(ii) 10 business days after the payment claim is served.
(5)The respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.
19 Consequences of not paying claimant if no payment schedule
(1) This section applies if the respondent—
(a)becomes liable to pay the claimed amount to the claimant under section 18 because the respondent failed to serve a payment schedule on the claimant within the time allowed by the section; and
(b)fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
(2) The claimant—
(a) may—
(i)recover the unpaid portion of the claimed amount from the respondent, as a debt owing to the claimant, in any court of competent jurisdiction; or
(ii)make an adjudication application under section 21(1)(b) in relation to the payment claim; and
(b)may serve notice on the respondent of the claimant’s intention to suspend, under section 33, carrying out construction work or supplying related goods and services under the construction contract.
(3) A notice under subsection (2)(b) must state that it is made under this Act.
(4)If the claimant starts proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt—
(a)judgement in favour of the claimant is not to be given by a court unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and
(b) the respondent is not, in those proceedings, entitled—
(i) to bring any counterclaim against the claimant; or
(ii)to raise any defence in relation to matters arising under the construction contract.
Discussion
If there was a contract between the plaintiff and the defendant for the supply of “related goods and services” then I am satisfied that it was terminated by the exchange of emails of 6 and 7 June 2012. I accept the submission by the defendant, not disputed by the plaintiff, that following this exchange of emails neither party took any steps to perform the contract and neither party purported to terminate such contract for the other party’s breach within a reasonable time.
The “Reference Date” Argument
The plaintiff alleges that it submitted a Payment Claim on 13 November 2012 for the design and the two variations. The question arises as to whether a Payment Claim can be delivered after the contract has been terminated.
Mr van de Beld submits that the payment claim served on 13 November 2012 was a Payment Claim under the Act because:
(a) It identified the construction work and/or related goods and services to which the progress payment related;
(b)It stated the amount of the progress payment the plaintiff claimed was payable;
(c) It stated it was under the Act;
(d) It was made within a period of 12 months after the construction work was carried out and/or related goods and services were last supplied…”[17]
[17]Para 20 of Plaintiff’s submissions
In submitting that the Payment Claim was made within 12 months after the construction work was carried out and/or related goods and services were last supplied, he would appear to be relying upon section 17(4) of the Act as set out above.
I am satisfied that the design work undertaken by the plaintiff comes within the definition of “related goods and services”.[18] As that term is defined under the Act.
[18]See s 11(1)(b)(ii) of the Act
I am also satisfied that the sourcing and inspection of an underground LPG tank also comes within that definition.
Mr Handran submits that in the light of the authorities referred to below, for the purpose of section 12 of the Act, a “reference date” cannot occur after the termination of the contract. Therefore he submits that the plaintiff is not “…a person... entitled to a progress payment if the person has undertaken to carry out construction work, or supply related goods and services, under the contract” in accordance with section 12 of the Act. (The emphasis is mine)
Mr Handran refers to the following authorities:-
(i) Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd[19]
[19][2012] 2 Qd R90
(i) McNab NQ Pty Ltd v Walkrete Pty Ltd [2013] QSC 128
(i) Kellett Street Partners Pty Ltd v Pacific Rim Trading Co Pty Ltd and Ors[20]
[20][2013] QSC 298
In the Walton Construction matter His Honour Justice Peter Lyons had been referred to a decision of Brodyn Pty Ltd v Davenport[21], a decision of the New South Wales Court of Appeal. Hodgson JA wrote the decision of the court, the other members agreeing therewith.
[21](2004) 61 NSWLR 421, 443
At paragraph [39] of his judgment, Peter Lyons J referred to the Brodyn decision in which the court was considering the meaning of the definition “reference date” where that expression appears in section 8(2) of the New South Wales equivalent of the Act. His Honour referred to a passage of the judgment in Brodyn, “… however, in s 8(2) of the Act does not provide that reference dates cease on termination of a contract or cessation of work…”
At paragraph [40] of his judgment Peter Lyons J said,
“[40]This passage (i.e. the passage referred to in paragraph [39] of his reasons) would appear to support the view that monthly reference dates continue to accrue, at least under the NSW Act, for 12 months after the cessation of work, notwithstanding termination of the contract. However, there are differences, which seem to me to be not without importance, between the statutory provisions which identified reference dates, in the legislation in the two States.”
At paragraphs 42 and 43 His Honour said, without including the footnotes,
“[42]The use of the expression ‘under construction contract’ found in the Queensland definition makes it somewhat more difficult to conclude that a reference date occurs after termination. There is then no longer a contract ‘under’ which there might be a reference date. The conclusion that a reference date does not occur after termination of a contract is, in my view, also consistent with the general nature of the payment for which provision is made by the BCIP Act, that is to say, payments which are of a provisional nature, made over the life of the contract.
[43]The second difference which I have noted between the two definitions is also of significance. The language used in the BICP Act (i.e. the Act) gives greater primacy to the provisions of the contract dealing with the making of a claim for a progress payment than does the language of the NSW Act…”
In the McNab case, at paragraph 28, de Jersey CJ followed the reasoning of Justice Lyons in Walton. He said
“[28]As to whether a ‘reference date’ (s 12 and sch 2) can arise, for the purposes of the Act, subsequently to the effectual termination of the relevant contract, I respectfully adopt the reasoning of Lyons J in Walton.”
In the Kellet Street Partners matter, at paragraph 19 of his reasons, Douglas J concluded that a contract between the applicant and the first respondent was terminated by a conversation had on 28 March 2012. In the last sentence of that paragraph he said, “In following the decision of Peter Lyons J in Walton Construction (Qld) Pty Ltd v Corrosion Control Technology Pty Ltd I conclude that no reference date can occur after that termination.”
Mr van de Beld’s submission that a payment claim can be made within 12 months after the construction work was carried would appear to be consistent with the decision of the NSW Court of Appeal in Brodyn referred to above. However, as Peter Lyons J specifically declined to follow Brodyn and his decision was followed by de Jersey CJ in the McNab decision and by Douglas J in the Keller Street Partner decision, I am satisfied that a reference date for the purpose of section 12 of the Act cannot occur after termination of a construction contract.
Calculation of the value of the variations
Looking at the invoice of 13 November 2012, it is broken up into four separate components.
(i) The first component is in respect of the design of the fuel system and the amount claimed is $25,000 plus GST.
(ii) The second component refers to variation 1 which includes “redesign and redraw truck refuelling area… change drawing to include a 10,000 litre AD Blue tank…. Upgrade LPG dispenser….draw additional fuel lines…” The amount claimed is $12,650 plus GST.
(iii) The third component relates to the request by the defendant to locate an underground LPG tank and the inspection thereof. The amount claimed is $1500 plus GST.
(iv) The fourth component relates to “transport, tolls outgoings - $375 plus GST”.
The second, third and fourth components make no reference to how the respective sums of $12,650; $1,500; and $375 are calculated.
The contract did not contain a mechanism for calculating these respective amounts. Section 13(b) of the Act therefore applies and the amount of any progress payment claimed is to be calculated based on the value of that work. Section 14 then provides for the basis on which the value is to be determined.[22]
[22]Para 34 of the Defendant’s submissions.
The plaintiff does not plead any basis for, nor does it advance any evidence to show, how the value of those works was (or may be) determined and, moreover, how it may possibly be a reasonable sum for the work performed.[23]
[23]Para 35 of the Defendant’s submissions.
When extra work is performed outside of a contract, upon request, the contractor is only entitled to be paid a reasonable sum for such work. Any implication for payment for the additional work must be reasonable.[24]
[24]Para 36 of the Defendant’s submissions.
In either case, the requirements of section 14 of the Act (appertaining to the valuation exercise) are not present here.[25]
[25]Para 37 of the Defendant’s submissions.
There was no notice of any fee or estimate of same given before work was undertaken…. The defendant gave no notice of any fee for doing that work. Absent any matters of that kind, there is no yardstick to assess the value of what work was undertaken.[26]
[26]Para 38 of the Defendant’s submissions.
The same can be said for the reimbursement type expenses claimed. The incurrence of those costs has not been sworn to and no source vouchers have ever been produced.[27]
[27]Para 39 of the Defendant’s submissions.
In the circumstances I am satisfied that the amended invoice includes sums which have not been calculated in accordance with the Act and is therefore not a valid progress payment.
In F K Gardner and Sons Pty Ltd v Dirmin Pty Ltd,[28] at paragraph 24, Her Honour Ann Lyons J said of the regime set up under the Act, “[24] The Act sets up a statutory regime for the recovery of progress claims and it is dependant on a series of steps being completed. There must be a valid statutory entitlement to a progress payment before a payment claim be made and then if a payment schedule does not issue within the time the unpaid portion of the claim becomes a debt. Such a statutory regime depends on strict compliance with the provisions of the Act…”
[28][2006] QSC 243
In the circumstances I am satisfied that the amended invoice dated 13 November 2012 was delivered after the termination of any construction contract between the parties. Accordingly the plaintiff is not entitled to a progress payment pursuant to s 12 of the Act. It follows that the plaintiff is not “a person…entitled to a progress payment…under the contract”. Secondly, the amount of the amended invoice is not calculated in accordance with s 13(b) of the Act.
Orders Sought by the Defendant
In it’s Application filed 16 August 2013 the defendant seeks an order pursuant to Rule 293 of the UCPR that there be judgment in its favour against the plaintiff. Alternatively it seeks an order pursuant to Rule 171 of the UCPR that the plaintiff’s statement of claim filed 13 December 2012 be struck out or alternatively certain paragraphs thereof be struck out.
Rule 293 is, relevantly, in these terms:
“293(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part a judgment against the plaintiff.
(2)If the court is satisfied –
(a) The plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim; and
(b) There is no need for a trial of the claim or the part of the claim;
The court may give judgment for the defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.”
In Deputy Commission of Taxation v Salcedo[29] Williams JA referred to Swain v Hillman[30] where the Court of Appeal in England was considering rule 24.2, the equivalent of rule 292. Rule 292 provides that a plaintiff may obtain summary judgment against the defendant applying the same principles as must be applied where a defendant seeks summary judgment against a plaintiff. Lord Woolf MR said at 92, “the words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or….they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.
[29][2005] 2 QdR 232.
[30][2001] 1 All ER 91
The plaintiff’s Further Amended Statement of Claim is in an unsatisfactory state. It pleads part of a claim in contract and the claim seeking relief under the Act. I will discuss this further below in the context of the plaintiff’s cross application.
In my view the plaintiff has no real prospect of succeeding in its claim for relief under the Act. Accordingly those paragraphs of the Further Amended Statement of Claim, i.e. 2C, 2E, 3, 4, 5, 5A which plead for that relief should be struck out and the defendant should have his costs of his Application to be assessed or agreed.
The Plaintiff’s Cross Application
Mr van de Beld read the following material:-
(i) Application filed 3 February 2014;
(ii) Affidavit of Graham Eric Bell filed 31 January 2014;
(iii) Further Amended Statement of Claim filed 7 November 2013;
(iv) Amended defence filed 24 July 2013;
(v) Reply dated 6 August 2013.
In its Application filed on 3 February 2014 the plaintiff seeks the following relief:
That the defendant’s application filed 16 August 2013 be dismissed.
2. That, pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 and or s 19(4) of the Building and Construction Industry Payments Act 2004, judgment be entered in favour of the plaintiff against the defendant for all of the plaintiff’s claim…” The plaintiff also seeks costs.
It is interesting to note that the plaintiff’s Application seeks relief in the alternative i.e. pursuant to rule 292 of the UCPR and/or judgement pursuant to s 19(4) of the Act. However, its Further Amended Statement of Claim does not plead its claim in the alternative.
In my view the plaintiff should have pleaded its claim in contract and in the alternative for relief under the Act. See s 5 of the Act.
After striking out those paragraphs of the plaintiff’s Further Amended Statement of Claim claiming relief under the Act, what is left is a partly pleaded claim in contract.
The defendant has not filed a defence to either the Amended Statement of Claim or the Further Amended Statement of Claim. It is true, as Mr van de Beld submits, the defendant is deemed to admit the allegations of fact made by the plaintiff.[31] However, in my view the plaintiff has not properly pleaded its case and one cannot be critical of the defendant for not filing a defence thereto.
[31]Rule 166 of the UCPR.
One should also be conscious of Rules 5(2) and (3) of the UCPR which are in the following terms:
“(2)…these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way…”
Despite the passing of almost 15 months since the plaintiff filed its claim and three unsuccessful attempts to properly plead its case, the plaintiff’s Further Amended Statement of Claim is unsatisfactory for reasons outlined above. The defendant filed it’s application for summary judgement on 16 August 2013. The plaintiff did not file it’s cross application until almost 6 months later, on 3 February 2014. The plaintiff has been dilatory in the prosecution of this matter and has not complied with Rule 5(3) of the UCPR.
Orders
I order that:-
Paragraphs 2C, 2E, 3, 4, 5 and 5A of the plaintiff’s Further Amended Statement of Claim be struck out;
The plaintiff pay the defendant’s costs of the defendant’s application to be assessed or agreed;
That within 21 days from today, the plaintiff file and serve a Further Amended Statement of Claim, failing which it’s claim is struck out;
The plaintiff pays the defendant’s costs of the plaintiff’s application to be assessed or agreed.
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