Project Delivery Managers v Keswick Developments P/L
[2011] QMC 27
•31 January 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Project Delivery Managers v Keswick Developments P/L [2011] QMC 27
PARTIES:
PROJECT DELIVERY MANAGERS
(applicant)
v
KESWICK DEVELOPMENTS PTY LTD
(respondent)
FILE NO/S:
M1346/10
DIVISION:
Magistrates Courts
PROCEEDING:
Application for summary judgment
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
31 January 2011
DELIVERED AT:
Townsville
HEARING DATE:
1 December 2010
MAGISTRATE:
Verra LP
ORDER:
The application for summary judgment is refused.
CATCHWORDS:
TRADE PRACTICES – BUILDING AND CONSTRUCTION – payment of building contract – Payment Claim
Building and Construction Industry Payment Act 2003, s 7, s 8, s 17, s18, s19
COUNSEL:
Morzone for applicant
Whitten for respondent
SOLICITORS:
Wilson Ryan and Grose Solicitors for applicant
Kelly Legal for respondent
The originating application seeks the following orders –
1. Judgment against the respondent in the sum of $124,664.07 as a liquidated debt pursuant to Section 19(2)(a)(i) of the Building and Construction Industry Payments Act 2004 (Qld) (the Act);
2. The respondent pay the applicant interest pursuant to Section 67P of the Queensland Building Services Authority Act 1991 (Qld) or in the alternative, pursuant to Section 47 of the Supreme Court Act 1995 (Qld);
3. The respondent pay the applicant’s costs of and incidental to this application.
In the applicant’s outline of submissions[1], a brief summary of events leading up to the application is set out under the heading of ’background’. That summary is as follows -
[1] P2
Background
On or about 9 October 2009, the applicant entered into a written Consultancy Agreement for construction work and related goods and services with the respondent to provide the services of construction management and project management for the various phases of construction of infrastructure on Keswick island.
The applicant provided construction work related consultancy services to the respondent pursuant to the Contract.
The applicant submitted regular invoices to the respondent pursuant to the Contract. The practice that was established by the parties was to send invoices by email to the email address as advised by the respondent.
In or around August 2010, the relationship between the parties deteriorated and the respondent failed to attend to the full payment of invoices submitted from or around June 2010. A number of defects have been alleged and the Contract has subsequently been terminated.
The respondent has engaged Kelly Legal as their solicitors and correspondence regarding a potential civil claim for damages greater than the amount owing to the applicant has been threatened and used as a reason for non-payment of the outstanding invoices.
The respondent failed to pay the last invoices. Consequently, in respect of the work subject of those invoices, on 22 October 2010 the applicant served the respondent with a Tax Invoice as a Payment Claim under the Building and Construction Industry Payments Act 2004 (Qld) for an amount of $124,664.07.
The respondent did not serve a Payment Schedule in response to the Payment Claim.
Correspondence following the deterioration of the relationship
Around August 2010 the relationship between the parties deteriorated and an exchange of correspondence followed. In relation to payment of the outstanding invoices and the respondent’s claims of negligence on the part of the applicant , the following excerpts from correspondence annexed to the affidavits of Mr Dawson-Damer and Mr Kelly are particularly relevant –
1. Email dated 25 August 2010 from Scott Munro (Keswick) to Jim Sullivan (PDM) (Annexure 55 affidavit Dawson-Damer) – “Your companies (sic) actions have caused us great delay & cost. Furthermore, PDM have been incompetent and negligent. We are reviewing the circumstances and obtaining legal advice and either us, or our solicitors, will be in further contact in due course”;
2. Letter from PDM to Keswick dated 31 august 2010 (Dawson-Damer annexure 56) – “In the meantime, as previously advised, our invoices of 6th August 2010 were due for payment on 13 August 2010 and interest is now accruing pursuant to clause 8.4. Please attend to payment of these invoices at your earliest convenience. If you have any specific issues with these invoices, then we invite you to discuss these with us, in order that these matters may be resolved quickly and amicably”;
3. Letter from Keswick to PDM dated 8 September 2010 (Dawson-Damer annexure 58). (After listing “some of the defects which (had) come to light since PDM terminated the contract” and that “these (were) just the tip of the ice berg as the total list is considerably longer”) – “In the circumstances, PDM is not entitled to demand payment of its invoices and is liable to compensate KDPL for the loss and damage caused as a consequence of those breaches”
4. Letter from PDM to Keswick dated 13 September 2010 (Dawson-Damer annexure 59) – “We note the further allegations in your recent correspondence and again we deny them. However, in the interests of resolving these matters as efficiently and as amicably as possible, we propose to await the full details of your concerns before responding. Having said this, we again note that our most recent invoices remain outstanding and interest continues to accrue on them. Whilst we are prepared to work with you to resolve any outstanding issues which you may have, and will provide you with further copies of the documentation which you have requested, we would appreciate your providing details of your concerns at your earliest convenience.”
5. Letter (by facsimile) from Kelly Legal to PDM dated 22 September 2010 (Kelly annexure 1) – “Please note that our client’s position is as follows: - 1. Our client is not indebted to you at all. 2. Our client is currently quantifying its loss and damage as a consequence of your breach of contract, negligence and/or misleading or deceptive conduct. 3. On present indications our client’s loss and damage is likely to be substantial such that you will owe our client a significant amount of money.”
6. Letter (by facsimile, Email and post) from Kelly Legal to PDM dated 8 October 2010 (Dawson-Damer annexure 92 and Kelly annexure 4) – “The material (documents recently supplied to Keswick) certainly does not go any way toward supporting an argument that the works have been done properly and in a good and workmanlike manner and otherwise in compliance with legal requirements. What our client was hoping to receive was evidence such as photographs of works being done and diary entries of what was done and by who.”
7. Letter from Wilson Ryan and Grose to Kelly Legal dated 21 October 2010 (Kelly annexure 13) – “We act for Project Delivery managers Pty Ltd and are in receipt of your correspondence of 8 October 2010. … we note that the following invoices of our client remain outstanding and are overdue for payment” (The outstanding invoices and amounts are then detailed) … interest is accruing on these outstanding invoices in accordance with clause 8.4 of the Contract (details of amounts followed) … Our client reserves its rights.”
8. Letter (by E Mail and post) from Kelly Legal to PDM dated 22 October 2010 (Kelly annexure 16) – “Please take this as formal notice of our client’s intention to institute legal proceedings against you”
9. Letter (by Email) from Kelly Legal to Wilson Ryan and Grose dated 25 October 2010 (Kelly annexure 35) – “Our client’s position is evident from previous correspondence. Not only is our client not indebted to your client but our client has suffered substantial loss and damage which will significantly exceed any monies that your client claims are owing to it”
10. Letter (by Email from Kelly Legal to Wilson Ryan & Grose dated 1 November 2010 (Kelly annexure 37) – “We refer to our letters of 22 October 2010 and 25 October 2010. We note that we have not heard from you. We look forward to receiving a response. In the meantime, your client has forwarded invoices and related information to our client. Please instruct your client that all correspondence should be via legal representatives.”
11. Letter from Wilson Ryan & Grose to Kelly Legal dated 1 November 2010 (Kelly annexure 39) – “1. We refer to your correspondence of 25 October 2010 and 1 November 2010. 2. We are awaiting instructions from our client and will respond to your letters in due course. 3. In the meantime, we invite you to contact the writer if you wish to discuss this matter further.”
12. Letter from Wilson Ryan & Grose dated 8 November 2010 (Kelly annexure 42) – “1. We refer to your previous correspondence in this matter. 2. We are instructed to advise that our client: - … 2.2 continues to deny the substantive allegations made by your client. … 6. In the meantime, we invite you to contact the writer if you wish to discuss this matter further.”
Issues for determination
The issues for determination are –
1. Does the Payment Claim[2] sufficiently identify the construction work or related goods and services to which the progress payment relates, as required by Section 17 of the Act;
2. In relation to the Payment Claim, “whether in light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive”[3] having regard to the natural meaning of the terms of s 52 of the Trade Practices Act 1974 (Cth), to the extent that - “… the respondent to the application has established some real prospect of succeeding at a trial”[4]
[2] Affidavit of Dawson-Damer “EDD-1” pages 64-91
[3] Applicant’s Outline of Submissions para 18
[4]Deputy Commissioner of taxation –v- Salcedo [2005] QCA 227 para 17
I will deal later with the question of what is the appropriate test for determining if there is a real prospect of success.
Legislation - Building and Construction Industry Payments Act 2004
Division 3 sets out the objects of the Act -
7Object of Act
The object of this Act is to ensure that a person is entitled to receive, and is able to receive, progress payments if the person –
(a) undertakes to carry out construction work under a construction contract; or
(b) undertakes to supply related goods and services under a construction contract.
8How object is to be achieved
The object is achieved by –
(a) granting an entitlement to progress payments whether or not the relevant contract makes provision for progress payments; and
(b) establishing a procedure that involves-
(i) the making of a payment claim by the person claiming payment; and
(ii) the provision of a payment schedule by the person by whom the payment is payable; and
(iii) the referral of a disputed claim, or a claim that is not paid , to an adjudicator for decision; and
(iv) the payment of the progress payment decided by the adjudicator.
Pursuant to section 17 of the Act, a person who is entitled to a progress payment under Part 2 may serve a Payment Claim on the person who is liable to make the payment. Section 17(2) of the Act provides -
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.
Section 18 of the Act then gives the respondent the discretion to reply to the Payment Claim by serving a Payment Schedule on the claimant. If the respondent does not serve a Payment Schedule on the claimant within the prescribed time of 10 business days after the Payment Claim is served, either intentionally because the claim is disputed, or unintentionally through inadvertence or otherwise, then “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.”[5]
[5] Section 18(5) of the Act
The consequences of not paying a claimant the whole or any part of the claimed amount on or before the due date, if no Payment Schedule is served, are set out at section 19 of the Act. Significantly, s 19(2) of the Act provides –
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;
Does the payment claim identify the construction work or related goods and services to which it relates?
It was common ground that there was a clear distinction to be drawn between supervisory services and the actual work of the sub-contractor.[6]
[6] Verbal submissions – digital recording at approx 1:42
Excerpt number 6 referred to earlier in this judgment[7] was referred to by Mr Morzone in his verbal submissions to highlight the fact that the information being sought, namely the diary entries of “what was done and by who”, was a reference to the work of the sub-contractors of the respondent; and that there had been no requests for more details of the applicant’s supervisory activities[8]. In Neumann Contractors Pty Ltd v Traspunt No 5 PtyLtd Muir JA stated[9] -
“The aim of the provision would appear to be to prevent respondents to claims relying on allegations that the moneys claimed are not owing for reasons referable to the terms of the construction contract and/or to the parties’ performance or failure to perform thereunder. If such matters are to be relied on as a defence to a payment claim, they must be included in a payment schedule”.
[7] See under earlier heading “Correspondence following deterioration of the relationship”
[8] Digital recording at approx 1:46:17
[9] [2010] QCA 119 at [48]
As to what is sufficient to “identify the construction work … to which the progress payment relates”, Hodgson JA stated in Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd:[10]
“In my opinion, the relevant construction work … must be identified sufficiently to enable the respondent to understand the basis of the claim.”
[10] [2005] NSWCA 229 at [25]
In Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) Hodgson JA stated:[11]
“It is true that, if a payment claim does not identify the work in a way comprehensible to the respondent to the claim, the respondent will be in difficulty in formulating a payment schedule, and this may give rise to further difficulty in any adjudication proceedings … But in my opinion, if a respondent is unable to identify some of the work in respect of which the payment claim is made, it can in the payment schedule say it does not propose to make any payment in respect of that work because it cannot identify the work, and because for that reason it disputes that the work was done or done to a standard justifying payment, or was within the contract or within any variation of it, …
That is, I do not think a payment claim can be treated as a nullity for failure to comply with section 13(2)(a) of the Act, unless the failure is patent on its face; and this will not be the case if the claim purports in a reasonable way to identify the particular work in respect of which the claim is made.”
[11] [2005] NSWCA 409 at [34]
In Neumann Contractors P/L v Peet White J stated:
“The evaluation of the sufficiency of the identification takes into account the background knowledge of each of the parties derived from their past dealings and exchanges of documentation.”[12]
[12] [2009] QSC 376 at [25]
Finkelstein J in Protectavale Pty Ltd v K2K Pty Ltd[13] stated:
“The Payment Act places the claimant in a privileged position in the sense that he acquires rights that go beyond his contractual rights: Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42, 50. The premise that underlies the legislation is that cash flow is the lifeblood of the construction industry (Amflo Constructions Pty Ltd v Jefferies [2003] NSWSC 856 at [27] and that the principal under a construction contract should pay now and argue later (Multiplex Constructions [2003] NSWSC 1140 at [96].”
[13] [2008] FCA 1248 at [10]
And further:
“The test is an objective one; that is, it must be clear from the terms of the document that it contains the required information: Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 at [82]. But the terms must be read in context. Payment claims are usually given and received by parties experienced in the building industry who are familiar with the particular construction contract, the history of the project and any issues which may have arisen between them regarding the payment. Those matters are part of the context: Multiplex Constructions [2003] NSWSC 1140 at [76].
The manner in which compliance with s 14 is tested is not overly demanding: Leighton Contractors Pty Ltd v Campbelltown Catholic Club [2003] NSWSC 1103 at [54] citing HawkinsConstruction (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136 at [20] (“[The requirements for a payment claim] should not be approached in an unduly technical manner … As the words are used in relation to events occurring in the construction industry, they should be applied in a commonsense practical manner”); Multiplex Constructions [2003] NSWSC 1140 at [76] (“ (A) payment claim and a payment schedule must be produced quickly; much that is contained therein is in an abbreviated form which would be meaningless to the uninformed reader will be understood readily by the parties themselves”); Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA Pty ltd) [2007] QSC 333 at [20] (“The Act emphasizes speed and informality. Accordingly one should not approach the question whether a document satisfies the description of a payment schedule (or payment claim for that matter) from an unduly critical viewpoint”)”[14]
[14] [2008] FCA 1248 at [10-11]
Palmer J in Brookhollow Pty Ltd v R & R Consultants Pty Ltd & Anor, in summarising the law “as it emerged from Brodyn and Nepean”[15] referring to comparable NSW legislation, stated[16]:
[15]Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 and Nepean Engineering Pty Ltd [2005]NSWSC 1143
[16] [2006] NSWSC 1 at [41]
“ … (ii) there are some non-compliances with the requirements of s 13(2) of the Act which will result in the nullity of a payment claim for all purposes under the Act; there are other non-compliances which will not produce that result;
(iii) a payment claim which does not, on its face, purport in a reasonable way to: - identify the construction work to which it relates … fails to comply with an essential and mandatory requirement of s 13(2) so that it is a nullity for the purposes of the Act;
(iv) a payment claim which, on its face, purports reasonably to comply with the requirements of s 13(2) will not be a nullity for the purposes of engaging the adjudication and enforcement procedures of Pt 3 of the Act”.
The payment claim comprises some twenty-eight pages and is an amalgam of the applicant’s tax invoices and daily work sheets, as well as copies of tax invoices/receipts of various suppliers of other goods/services and a statement of interest claimed.
Mr Whitten, for the respondent, conceded in his verbal submissions that portions of the payment claim made “some attempt to identify what the work is”[17] and that he had “no real issue” with the contents of daily work sheets comprising pages 66 to 69 of the annexures to Mr Dawson-Damer’s affidavit. The total hours claimed in these sheets is approximately 117 hours.
[17] Digital recording at approximately 31:54
However, Mr Whitten submits that the use of expressions such as - “construction management[18]; on site works Keswick Island[19]; on site Keswick Island, sewer works[20]” - in the daily work sheets from annexure 70 to 79 , do not “go anywhere near properly identifying the work to enable the Principal to ascertain with sufficient certainty the work to which the claim relates”[21]. The total hours claimed in these sheets is approximately 860 hours.
[18] Annexure sheet 70 to affidavit of Edward Dawson-Damer
[19] Annexure sheets 71 to 75 affidavit of Edward Dawson-Damer
[20] Annexure sheet 76 affidavit of Edward Dawson-Damer
[21]Para 9 respondent’s written submissions
Prior to serving the payment claim, the respondent had received some twenty-one invoices[22] from the applicant. A summary of dates of receipt and payment of the invoices is set out in Mr Dawson-Damer’s affidavit[23]. A significant number of those invoices refer to “attached daily work sheets”; however, copies of the daily work sheets were not filed with the affidavit. Subsequent to the date of hearing of this application, I requested copies of those daily worksheets and they were provided in a timely manner.[24] The copies have been placed in sequential order with the copies of the respective invoices to which they refer within annexures 18 to 38 of Mr Dawson-Damer’s affidavit.
[22]Para 10 affidavit Edward Dawson-Damer and annexures 18 to 38
[23]Para 11 and annexure sheet 39
[24] Attachment to e mail dated 4 January 2011 from Stephen Byrne of Kelly Legal, the applicant’s solicitors.
A perusal of those daily work sheets, in respect of which the invoices have been paid, shows that expressions such as - “on site Keswick Island; on site works Keswick Island; on site Keswick Island construction works” - appear frequently. Expressions such as - “onsite Keswick Island, sewer works” – or slight variations thereof also appear frequently. The expressions - “construction management; onsite construction management” – appear on the daily work sheet attached to Tax Invoice 452 (annexure 38). The total hours claimed for work described in such terms is approximately 1800 hours. (I stress that my calculations from the various daily work sheets are mere approximates, based on my efforts with a calculator, and are quoted for general comparison purposes only.)
It is the use of expressions such as these that the respondent submits should render the Payment Claim a nullity for the purposes of the Act.
As can be seen from the comparisons I have made above, such expressions have been used on numerous occasions on daily work sheets previously submitted by the applicant with invoices which were subsequently paid. Consequently, “(taking) into account the background knowledge of each of the parties derived from their past dealings and exchanges of documentation”,[25] I am satisfied that the payment claim sufficiently identifies the construction work or related goods and services to which the progress payment relates, as required by Section 17 of the Act.
Does the respondent have some real prospect of succeeding at trial on the basis that there has been misleading and deceptive conduct on the part of the applicant?
[25] Per White J in Neumann Contractors P/L v Peet [2009]QSC 376 at [25]
The application for summary judgment is made pursuant to UCPR 292.[26]. As to the principles to be applied when determining such an application, both counsel referred to Deputy Commissioner of Taxation v Tareck Salcedo [2005] QCA 227 in their respective written Outline of Submissions. In that case, McMurdo P stated:[27]
“Nothing in the UCPR however, detracts from the well established principle that issues raised in proceedings will be determined summarily only in the clearest of cases. Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde ( (2000) 201 CLR 552, 575-576, [57]), recently cited with approval by Gleeson CJ, McHugh and Gummow JJ in Rich v CGU Insurance Ltd ( (2005) 79 ALJR 856, 859, [18]-[19]): ‘… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’.”
[26] Uniform Civil Procedure Rules 1999
[27] [2005] QCA 227 at [3]
In the same case, Williams J stated:[28]
“…ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.”
[28] [2005] QCA 227 at [17]
The defence under s 52 of Trade Practices Act was considered in Neumann Contractors Pty Ltd v Peet Beachton Syndicate Limited [2009] QSC 376 and Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119. In both cases, the decision in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 was referred to as authority for the principles to be applied.
In Demagogue Pty Ltd v Ramensky Gummow J stated:[29]
“ … consistently with regard to the natural meaning of the terms of s 52, the question is whether in light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive.”
[29] (1992) 39 FCR 31 at 40, 41
In the same case Black CJ stated:[30]
“Silence is to be assessed as a circumstance like any other. To say this is certainly not to impose any duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been misconduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of ‘mere silence’ or of a duty of disclosure can divert attention from that primary question. Although ‘mere silence’ is a convenient way of describing some fact situations, there is in truth no such thing as ‘mere silence’ because the significance of silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation, in the circumstances of the case, that if particular matters exist they will be disclosed.”
[30] (1992) 39 FCR 31 at 32
Mr Whitten in his verbal submissions stated[31] - “Whether in fact the fact of not knowing that it was a payment claim was because of and caused by the actions of the complainant is a triable issue”. Further, that there was “nothing wrong” [32] with PDM issuing the Payment Claim direct to Keswick, but the fact of the matter was that this occurred the very day after solicitors for PDM became involved.[33]
[31] Digital recording at approx 2:29:16
[32] Digital recording at approx 1:11:26
[33] Letter from Wilson Ryan and Grose to Kelly Legal dated 21 October 2010 (Kelly Annexure 13)
I have earlier set out excerpts from the correspondence which followed the deterioration of the relationship between the parties.
Prior to the issue of the Payment Claim the theme of the correspondence generally related to two issues. Firstly, PDM requesting payment of the unpaid invoices and Keswick or Kelly Legal denying liability for payment of the outstanding invoices. Secondly, the correspondence related to Keswick’s concerns as to “its loss and damage as a consequence of (PDM’s) breach of contract, negligence and/or misleading or deceptive conduct”[34] and the fact that their “loss and damage is likely to be substantial such that (PDM) will owe (Keswick) a significant amount of money”.[35] As to this second issue, PDM were generally responding in terms indicating their willingness to resolve matters “quickly and amicably”[36] and to “work with (Keswick) to resolve any outstanding issues which (Keswick) may have”.[37]
[34] Dawson-Damer Annexure 92
[35] Dawson-Damer Annexure 92
[36] Dawson-Damer Annexure 57
[37] Dawson-Damer Annexure 59
PDM had issued twenty-one prior invoices to Keswick[38], none of which were endorsed as Payment Claims. There is no reference to a Payment Claim in any of the correspondence prior to the date of issue of the Payment Claim.
[38] Affidavit Dawson-Damer para 10
On the day before PDM issued the Payment Claim, their solicitors Wilson Ryan and Grose wrote to Kelly Legal and advised they were acting for PDM and listed the outstanding invoices and ‘noted’ that they were overdue for payment. The letter concludes with the words “our client reserves its rights”. There was no specific reference to a Payment Claim or to the Queensland Building Services Authority Act 1991.
On 1 November 2010, after service of the Payment Claim but, it would appear, before expiry of the prescribed time for service of a Payment Schedule, Kelly Legal forwarded a letter by Email to Wilson Ryan and Grose stating[39] – “We refer to our letters of 22 October 2010 and 25 October 2010. We note that we have not heard from you. We look forward to receiving a response. In the meantime, your client has forwarded invoices and related information to our client. Please instruct your client that all correspondence should be via legal representatives.” It might well be inferred from the reference to ‘invoices’ that these included the Payment Claim. It might equally be inferred from that reference that neither Keswick nor Kelly Legal were alert to the fact that the final Tax Invoice 480 was in fact a Payment Claim.
[39] See excerpt 10 under earlier heading “Correspondence following deterioration of the relationship”
Save for the words - “This payment claim is made under the Building and Construction Industry Payments Act 2004 (Queensland)” - in boxed lining towards the bottom of the Tax Invoice, the document and other wording in that boxed lining are in identical form to earlier Tax Invoices.
Two further letters[40] dated 1 November 2010 and 8 November 2010 followed from Wilson Ryan and Grose to Kelly Legal, the latter of which would appear to be after the expiry of the prescribed time for service of a Payment Schedule. Again, there is no reference to a Payment Claim.
[40] Kelly Annexures 39 & 42
In Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd Muir J stated[41] -
“If officers of Traspunt had been alert or wary, or both alert and wary, it is likely that they would have understood from the Payment Claim and the covering letter, at least after ascertaining that the Payment Claim had not been submitted to the Superintendent, that Neumann was intending to rely on the provisions of the Act. The evidence, however, does not suggest that anything had occurred to put Traspunt on notice that Neumann was contemplating changing existing claim procedures and that, in consequence, claims had to be scrutinised with particular care. There was thus no compelling reason why Traspunt should have appreciated that the Payment Claim and the accompanying letter signalled a very substantial change to the basis on which claims for payment of moneys due under the contract were to be made and dealt with.”
[41] [2010] QCA 119 at [59]
In the present case, there is no mention made of a covering letter to Keswick. The Act does not require it and “no particular form is required”.[42] However, PDM had never indicated, either directly or through their solicitors, any intent to digress from existing claim procedures[43], apart from Wilson Ryan and Grose stating in their letter of 21 October 2010 to Kelly Legal that “our client reserves its rights.”[44]
[42]Minimax Fire Fighting Systems Pty Ltd v BremoreEngineering (WA) Pty Ltd & Ors [2007] QSC 333 at [20]
[43] Affidavit of Dawson-Damer [10 & 11]
[44] Kelly Annexure 13
If, as was stated in Neumann’s case[45], officers of Keswick and/or their solicitors “had been alert or wary, or both alert and wary”, it is likely that, upon receipt of Tax Invoice 480 dated 22/10/2010 and endorsed as a Payment Claim under the Act, they would have understood that PDM was intending to rely on the provisions of the Act. The fact that neither officers of Keswick nor their solicitors came to that realization and responded accordingly as required by the Act, is a factor which may be taken into account when considering the question of costs of this application.
[45]Neumann Contractors Pty Ltd v Traspunt [2010] QCA 119 at [59]
In all of the circumstances as I have outlined them and for reasons stated, I am not satisfied that this is a suitable case for summary judgment as I am satisfied that “the respondent to the application has established some real prospect of succeeding at trial” on the grounds that the applicant has engaged in misleading or deceptive conduct in breach of s 52 of the Trade Practices Act 1974.
The application for summary judgment is refused.
I invite the parties to confer on the issue of any other orders now sought and if agreement is reached, to tender consent orders, including any order as to costs.
If agreement is not reached, I will hear further submissions.
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