Re QMT Constructions Pty Ltd

Zion Electrical Pty Ltd applied for leave nunc pro tunc to bring proceedings against QMT Constructions Pty Ltd, which was in the process of a deed of company arrangement. QMT Constructions Pty Ltd had entered into a contract with Davids Distribution Pty Ltd for building work and subcontracted some of the work to Zion Electrical Pty Ltd. Zion Electrical Pty Ltd claimed $11,442.82 for work done, which remained unpaid. Administrators were appointed for QMT Constructions Pty Ltd, and Zion Electrical Pty Ltd lodged a proof of debt and served a notice of claim of charge. Zion Electrical Pty Ltd then commenced a plaint against QMT Constructions Pty Ltd, which was met with a defence based on the deed of company arrangement. The principal issues were whether the charge was initially effective, whether it had been extinguished, and whether leave should be granted to proceed with the action.
The court found that the charge was initially effective as it was created when the notice was given. The court also found that the charge had been extinguished because the action brought was not a proceeding in respect of a charge under the Subcontractors' Charges Act, as it failed to join the employer, Davids Distribution Pty Ltd. The claim made was simply for moneys owing for work and labour done, which did not fit the description of a proceeding in respect of a charge under the Act. Therefore, the application for leave nunc pro tunc to bring the proceeding was dismissed.
The court based its decision on the provisions of the Subcontractors' Charges Act and relevant case law. The court considered the effect of the deed of company arrangement and the requirements for enforcing a charge under the Act. The court also considered the principles for the grant of leave discussed in relevant case law. The court held that the charge had been extinguished and that it would not have been appropriate to grant leave nunc pro tunc to bring the proceeding as it was not a proceeding in respect of a charge under the Act.