Project Delivery Managers v Keswick Developments P/L

[2011] QMC 27

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

1. 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.       

1. 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

1. 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.

1. The applicant provided construction work related consultancy services to the respondent pursuant to the Contract.

1. 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.

1. 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.

1. 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.

1. 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.

1. The respondent did not serve a Payment Schedule in response to the Payment Claim.

Correspondence following the deterioration of the relationship

1. Around August 2010 the relationship between the parties deteriorated and an exchange of correspondence followed.…