Port New Pty Ltd v. SEQ Scaffolding Pty Ltd

[2008] QDC 172

[2008] QDC 172

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RYRIE

No 903 of 2008

PORT NEW PTY LTD	Applicant
and
SEQ SCAFFOLDING PTY LTD	Respondent

BRISBANE

..DATE 14/04/2008

ORDER

HER HONOUR:  This is an application by the applicant in this matter, Port New Pty Ltd, who will be referred to by that name hereinafter in these reasons regarding the liberty being sought by that company for the purpose of the exercise of the discretion for the District Court having jurisdiction to hear the matter, namely seeking an injunctive relief against the respondent, SEQ Scaffolding Pty Ltd.

The first point that I must, as the Judge hearing the application, turn my mind to is whether or not this is a matter of which the Court in its civil jurisdiction sitting in applications has power to hear.   Section 60A.1 subparagraph B(xii) allows for the Court to make and hear and determine and make orders in relation to matters such as this if it can be satisfied that the order being sought is to restrain, whether by injunction as it is here or otherwise, any actual threatened or apprehended trespass or nuisance to land where the value of the land does not exceed the monetary limit or in lieu of or in addition to such an injunction damages not exceeding the monetary limit.  Monetary limit for the purpose of this application and this Court is $250,000.

The material that has been placed before the Court relates to an originating application that was filed for the purpose of these proceedings as quite properly needed to be before the Court as there would be no power for the Court to make any injunction relief if, indeed, there was no originating application in the Court's jurisdiction upon which an order for injunctive relief might be made.

That has been filed and in that originating application, the applicant, Port New Pty Ltd, seeks damages against the respondent in the sum of $100,000 for breach of contract.  Alternatively, damages for the same amount under the Trade Practices Act and additionally an injunction to restrain the respondent by itself or its servants or agents from removing, or attempting to remove, certain scaffolding in situ on certain property being situated at a site in Southport.

An affidavit was filed by leave, sworn by John Joseph Massey, M-A-S-S-E-Y, sworn on the 14th April 2008.  That affidavit sets out in essence the history of the matter as between the applicant and the respondent and, to some degree, a party who is not subject to the proceedings as yet, Windows On Line Pty Ltd, who happens to be the owner of the requisite site on the construction occurring of four townhouses at 91 Pohlman, P-O-H-L-M-A-N, Street Southport.

Mr Massey has deposed at a particular point in time when initially the applicant company contracted with Window On Line Pty Ltd to construct four townhouses that he had no interest in Port New Pty Ltd.  However, he subsequently received full beneficial ownership of the applicant company on or about the 7th January 2008.

He also has an interest in Window On Line Pty Ltd, namely who are the owner.  Port New, it should be said, is the builder, constructed builder of the four townhouses and the respondent in this matter, SEQ, was a subcontractor with Port New of which they had engaged through another company's efforts to place scaffolding to allow work to be carried out under the various contracts between the parties.

As deposed to by Mr Massey the matters between the respective parties, Windows On Line, as well as Port New, started to arise with difficulties.  Subsequently difficulties also arose between Port New as builder and the third party subcontractor, SEQ Scaffolding, of which has been deposed to in Mr Massey's affidavit.

In this case it does appear that representations had been made to SEQ Scaffolding to shift what was described as misaligned scaffolding on site in order that cladding could be placed to the requisite buildings during construction.  That request had been made previously to them, however, as time passed the communications between Port New and SEQ Scaffolding, which caused difficulties then to arose between the requisite contracts as between those two parties.

The terms and conditions of the contract as between Port New and SEQ Scaffolding is annexed as an exhibit to the affidavit of Mr Massey, JWM1, which includes on page 2 of the terms and conditions of quotation relating to movement of scaffolding on page 2.

That is where the difficulty has arisen in this case in so far as the scaffolding still remains in place and there has been withholding of payments as between the builder and the third party subcontractor insofar as the builder, Port New, was of the view that the misaligned scaffolding should have been placed into its correct position and subsequently withheld payment.

That led to SEQ Scaffolding then returning in response by indicating that the withholding of payments then in itself caused them that unless they were to be paid appropriately as agreed that they would not be coming out to rectify the problem of misalignment.

The affidavit by Mr Massey suggests that there was a tender of $10,000 to be paid in order that the scaffolding could then be shifted back into place.  However, that has not eventuated and, indeed, as I understand it, the scaffolding has now been threatened to be removed as at tomorrow by SEQ Scaffolding unless they receive all moneys due and owing as they see it under the contract as between them, Port New, and SEQ Scaffolding, namely $10,000 to be paid in addition the balance of $31,949.81.

It is only when that money is received that the threat not to remove the scaffolding tomorrow will occur from the perspective of SEQ Scaffolding.  The applicant, Port New, argues that injunctive relief should be granted on an interim basis urgently on the following bases:

(1)That there can be no calculation in so far an adequate remedy if, indeed, the scaffolding is removed tomorrow by SEQ Scaffolding is threatened.  The damages, it is said, would be unable to be calculated with any degree in that the scant availability of scaffolding within the industry would give rise to Port New being placed in a position that if the scaffolding did get removed tomorrow that it may, indeed, not be able to get any scaffolding to be put in place in any event and may suffer damages that may ultimately be incalculable at this point.

That is significant for the purpose of determining whether or not any prejudice and any balancing between the parties that I must do in working out whether an interim injunction should be granted.  If there is an adequate remedy in damages for the person seeking the injunctive relief then it follows that equity should not be intervened in those circumstances.

The correspondence of JMM3, which is an exhibit to Mr Massey's affidavit, suggests that they are merely seeking the payments of the moneys owing to them by Port New under the contract as between themselves.  It does not suggest that the scaffolding will be required by them elsewhere in order that they might then place it on another building site which would allow them to then receive further moneys from other paying clients.

It may be that they might ultimately come with that information to the Court once they have received notice of the order if the Court was to make an interim injunction today to that effect.  It will then be a matter of determining whether or not in those circumstances the interim order should continue in circumstances where a third party, subcontractor such as SEQ Scaffolding, who have a right to the contract scaffolding which I understand they own, be denied a right to remove it if, indeed, they are ultimately going to suffer damages as a consequence of it remaining.

The other considerations are that the scaffolding would allow the option of the applicant, Port New, to then engage its own contractors to put it in its correct position.  The terms and conditions of the actual agreement as between Port New and SEQ Scaffolding, as I have referred to in the terms and conditions, state that the customer, in this case, Port New, shall only be allowed qualified scaffoldings to move, alter or repair the scaffold.  It may be if a third party is used then a customer must notify SEQ S of the extent of the alterations.

Whether or not that could be done by Port New is again a matter that ultimately may become an issue for the purpose of any subsequent contest between the parties for the continuation of any injunctive relief that may be granted.  It may well be that once an injunctive relief was granted to leave it remain it may be that that clause can then be agreed upon between the parties to allow either SEQ Scaffolding to remove it to the position as requested by Port New or alternatively for Port New to engage qualified scaffolders to move, alter and repair at its own expense if needs be the scaffolding on site.

On balance it does appear from an interim basis, of which I am granting this injunction ex parte, that on its face it, on balance, seems to fall in favour of the applicant, Port New, to at least restrain the removal of the scaffolding from site tomorrow in order that the retention of the scaffolding would give an option to engage other contractors to either put it in its correct position, allow SEQ Scaffolding to actually put it in to the correct position or alternatively the parties to be able to come to some arrangements themselves regarding payments that might be due and outstanding.  To have the matter not come back before the Court, simply to have those matters of issue currently between the parties yet to be determined, to be determined for the purpose of any further interlocutory injunctive relief.

I am satisfied that the applicant has reached the requisite standard in satisfying me that there is no adequate remedy that they can take for the purpose of damages against SEQ Scaffolding if, indeed, the scaffolding was removed tomorrow.  The reason that I say that is because of the scantity of availability of scaffolding within the construction industry that Mr Bowden tells me is the current position.

It must be said that in the affidavit of John Joseph Massey he has not deposed to that fact and it is my view for the purpose of the order being made by me today that an additional or an addendum to John Joseph Massey's affidavit cover that and I am sure Mr Bowden's solicitors will give an undertaking that that be filed today for that purpose‑‑‑‑‑

MR BOWDEN:  It will be, your Honour.

HER HONOUR:  ‑‑‑‑‑to cover the point that needs to be addressed that, indeed, there is no adequate remedy available to them because, as I have said, the scantity of the scaffolding in the industry in general out there.

It should also be said that there is a licence given to Port New as a builder engaged by an owner who owns the land has full legal ownership, including not only what Mr Massey has said about having full beneficial ownership but also has a licence of land to prevent trespass or nuisance.  Whilst they have the right to build on an owner's land, it does appear in the circumstances that, as I have said, even though SEQ Scaffolding may be the rightful owners of the scaffolding that Port New still, in the circumstances, are entitled to prevent property from being removed for the purpose of any contract between the parties where the removal of it will cause, what I have already mentioned in these reasons, as being balanced against what I consider is the result that will arise if, indeed, the scaffolding was allowed to stay tomorrow and any movement of it can be paid or sorted between the parties in the interim on an interim basis.

It is for those reasons I consider that an interim injunction should be granted.  I am willing to allow it to subside for a week at this point.  Clearly the SEQ Scaffolding when they receive the order may wish to have the matter heard earlier if needs be.  However, that is a matter yet to be determined upon the receipt of the order being issued today.

Therefore, it is ordered for the reasons that I have given and the fact that the applicant has given the usual undertaking as to damages, as is required before any interim injunction can be given, the following orders as per draft.  Is there anything different there, Mr Bowden‑‑‑‑‑

MR BOWDEN:  No, your Honour.

HER HONOUR:  ‑‑‑‑‑other for me then to insert the date, being the 21st?

MR BOWDEN:  That is all, your Honour, and your Honour's noted out undertaking to cover that point‑‑‑‑‑

HER HONOUR:   As to damages, yes.

MR BOWDEN:  ‑‑‑‑‑about the availability of scaffolding within the industry.

HER HONOUR:  Yes.

MR BOWDEN:  We will‑‑‑‑‑

HER HONOUR:  Yes, your undertaking.  I think that is a very salient point for the purpose of your‑‑‑‑‑

MR BOWDEN:  Your Honour has mentioned it as being so.  Well, thank you, your Honour, that is‑‑‑‑‑

HER HONOUR:  So, I will make the order as per draft with the addition of the number one, being that until 4 p.m. on the 21st April or earlier order the respondent - it will be that date.  One hour 25, which is the balance of the time allocated for applications is available.

MR BOWDEN:  Thank your Honour.  And your Honour's adjourning the application till that day.

HER HONOUR:  And I will adjourn till that date and I will leave costs reserved at this stage, Mr Bowden‑‑‑‑‑

MR BOWDEN:  Yes, your Honour.

HER HONOUR:  ‑‑‑‑‑because I suspect there may be a response.

MR BOWDEN:  Indeed, there might be, your Honour.

HER HONOUR:  I am hoping it can be resolved obviously for obvious reasons.

MR BOWDEN:  Yes.

HER HONOUR:  It seems that there is provision within the terms and conditions between the parties that allow for some resolution.

MR BOWDEN:  Yes.

HER HONOUR:  And the offer of the $10,000, I do not know if it has been paid.  It does not appear as if it has at this point but‑‑‑‑‑

MR BOWDEN:  No, it has not, your Honour, and the affidavit says it has not because they demanded‑‑‑‑‑

HER HONOUR:  The balance.

MR BOWDEN:  The balance, yes.

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