R J Neller Building Pty Ltd v Ainsworth

SUPREME COURT OF QUEENSLAND

CITATION: 

R J Neller Building P/L v Ainsworth [2008] QCA 397

PARTIES: 

R J NELLER BUILDING PTY LTD ACN 097 945 581
(respondent)
v
KJERULF DAVID AINSWORTH
(applicant)

FILE NO/S: 

Appeal No 7018 of 2008
DC No 95 of 2007

DIVISION: 

Court of Appeal

PROCEEDING: 

Application for Stay of Execution

ORIGINATING 
COURT: 

District Court at Maroochydore

DELIVERED ON: 

9 December 2008

DELIVERED AT: 

Brisbane

HEARING DATE: 

5 November 2008

JUDGES: 

Keane and Fraser JJA and Fryberg J
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER: 

1.	Application for leave to appeal struck out
2.	Application for leave to amend the notice of appeal struck out
3.	Application for stay of execution refused
4.	Applicant to pay the respondent's costs of each of the applications to be assessed on the standard basis

CATCHWORDS: 

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the respondent was successful in an adjudication of its claim for payment from the applicant for work performed under a construction contract – where the respondent obtained an enforcement warrant against property owned by the applicant based upon the adjudication certificate – where the applicant commenced proceedings against the respondent seeking an order that the adjudication be set aside and damages for breach of contract – where the applicant applied to have the enforcement warrant set aside – where the applicant applied for a stay of the enforcement warrant – whether the learned primary judge erred in dismissing the applications – whether this Court may order a stay of the enforcement warrant pursuant to r 800 of the Uniform Civil Procedure Rules 1999 (Qld)

CONTRACTS  – BUILDING, ENGINEERING AND

RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the applicant engaged the respondent to carry out renovations to his property – where the applicant, in signing the standard form contract, declared that he is not a "resident owner" – where the respondent carried out the work – where the applicant refused to make all payments to the respondent for the work completed – where the respondent sought to rely upon the provisions of the Building and Construction Industry Payments Act 2004 (Qld) – where the applicant now claims to be a "resident owner" – whether the provisions of the Act apply to the contract between the applicant and respondent

Building and Construction Industry Payments Act 2004 (Qld),
s 3, s 31, s 99, s 100
Domestic Building Contracts Act 2000 (Qld), Sch 2
Uniform Civil Procedure Rules 1999 (Qld), r 800

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685,
cited
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421;
[2004] NSWCA 394, cited
Cook's Construction P/L v Stork Food Systems Aust P/L
[2008] QCA 322, considered
Deputy Commissioner of Taxation (Vic) v Yosemite
Afforestation Pty Ltd (1988) 19 ATR…