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Re: Northbuild Construction P/L

Re: Northbuild Construction P/L

Case [1998] QSC 196 25 September 1998

Contract Formation

Breach of Contract

Unconscionable Conduct

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IN THE SUPREME COURT
OF QUEENSLAND

Brisbane O.S. No.6399 of 1998

Before the Hon. Mr Justice Shepherdson

[Re: Northbuild Construction P/L]

IN THE MATTER of Section 21 of the Subcontractors’ Charges Act 1974
and
IN THE MATTER of an application by Northbuild Construction Pty Ltd for an Order pursuant to the Subcontractors’ Charges Act cancelling claim of charge claimed by Peter James Lockton as trustee for the Lockton Family Trust t/as PJ Lockton Fabrications on or about the 19th day of May 1998 addressed to The Crown in the Right of the State of Queensland through the Director-General, Department of Public Works and Housing

CATCHWORDS: SECURITIES - Subcontractors’ Charges Act 1974 - application under s.21 to cancel charge because claimant sub-contractor not licensed under s.42 of Queensland Building Services Authority Act and therefore not entitled to be paid any reward for work done - claims by respondent:-
(1) Crown immunity for sub-contractor
(2) whether s.42(3) applied to claim if brought in quantum meruit
(3) estoppel against head contractor
claims discussed - application dismissed.

Counsel:Mr D.A. Savage for the applicant
Mr T. Matthews for the respondent

Solicitors:Bowdens for the applicant
Barwicks for the respondent

Hearing date: 6 August 1998

JUDGMENT - SHEPHERDSON J.

Judgment delivered 25 September 1998

Northbuild Construction Pty Ltd has applied for the following orders:-

(a)that a charge made by Peter James Lockton as trustee for the Lockton Family Trust trading as PJ Lockton Fabrications under the Subcontractors’ Charges Act 1974 dated 19 May 1998 in respect of moneys payable by the Crown in the right of the Director-General, Department of Public Works and Housing to the applicant be cancelled.
(b)that the respondent Peter James Lockton as trustee for the Lockton Family Trust trading as PJ Lockton Fabrications pay the applicant’s costs of and incidental to the application.

The material before me shows the following:-

(a)That on or about 16 June 1997 the applicant (“Northbuild”) entered into a contract with the Crown in the right of the State of Queensland through the Director-General, Department of Public Works and Housing (“the Department”) for the redevelopment of the Salisbury State High School.
(b)On 10 July 1997 Northbuild entered into a lump sum contract with the respondent for the respondent “to perform the required structural steel, metal work and handrails” at the Salisbury State High School site “in accordance with the general conditions of contract contained on the rear of this order and attached appendix A”. The lump sum contract is on a document styled “SUB-CONTRACT ORDER” and there is no dispute that this subcontract was in respect of Northbuild’s head contract for work at the Salisbury State High School. Appendix A to the “SUB-CONTRACT ORDER” is headed “SCOPE OF WORKS SALISBURY STATE HIGH SCHOOL”, shows “TRADE: STRUCTURAL STEEL/METAL WORK” and continues:-
“A. TERMS AND CONDITIONS OF CONTRACT

The Head Contract is AS2124-1992 as amended by the Department. A copy is available for viewing at Northbuild Construction’s Head Office. The Terms and Conditions of the Head Contract are deemed to apply…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re: Northbuild Construction P/L

Details

AGLC: Re: Northbuild Construction P/L [1998] QSC 196
Case: [1998] QSC 196
Decision Date: 25 September 1998

CaseChat Overview and Summary

Northbuild Construction Pty Ltd applied for an order cancelling a charge claimed by Peter James Lockton as trustee for the Lockton Family Trust t/as PJ Lockton Fabrications on or about the 19th day of May 1998. The claim was addressed to The Crown in the Right of the State of Queensland through the Director-General, Department of Public Works and Housing. Northbuild sought to cancel the charge because Lockton was not licensed under s.42 of the Queensland Building Services Authority Act and therefore not entitled to be paid any reward for work done. Lockton raised three defences to the application. Firstly, he claimed Crown immunity for the subcontractor. Secondly, he argued that s.42(3) of the Queensland Building Services Authority Act applied to the claim if brought in quantum meruit. Thirdly, he claimed estoppel against Northbuild. The court had to determine whether Lockton was entitled to Crown immunity, whether s.42(3) applied to the claim if brought in quantum meruit, and whether Northbuild was estopped from cancelling the charge.

The court held that Lockton was entitled to Crown immunity. It found that the Queensland Building Services Authority Act did not bind the Crown either by express words or by implication. It held that the BSA Act did not significantly prejudice the Crown, and therefore Crown immunity applied to Lockton. The court held that s.42(3) applied to the claim if brought in quantum meruit. It found that Marshall v Marshall left open the question whether an unlicensed builder can recover on a quantum meruit. The court held that Lockton was estopped from cancelling the charge. It found that Northbuild had led Lockton to believe no licence was required before he could enter into the contract and do the work. The court held that cancellation of the charge was not clearly untenable.

The court dismissed the application. It held that Lockton was entitled to Crown immunity, s.42(3) applied to the claim if brought in quantum meruit, and Northbuild was estopped from cancelling the charge. The court found that the charge was not clearly untenable and therefore dismissed the application.

Orders