RJ Neller Building Pty Ltd v Ainsworth

DISTRICT COURT OF QUEENSLAND

CITATION:

RJ Neller Building Pty Ltd  v Ainsworth [2008] QDC 129

PARTIES:

RJ NELLER BUILDING PTY LTD

Plaintiff/Respondent

v

KJERULF DAVID AINSWORTH

Defendant/Applicant

FILE NO:

95 of 2007

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Maroochydore

DELIVERED ON:

25 June 2008

DELIVERED AT:

Maroochydore

HEARING DATE:

23 May 2008

JUDGE:

K S Dodds, DCJ

ORDER:

The application is refused with costs.

CATCHWORDS:

BUILDING CONTRACTS – RESOLUTION OF DISPUTES – ADJUDICATION – where respondent to adjudication brought proceeding in District Court arising out of same contract as adjudication – where proceeding in District Court brought after adjudicators certificate served on respondent to adjudication but before adjudicators certificate filed in District Court – whether enforcement warrant issued upon judgment in District Court on filing of adjudication certificate should be stayed

Building and Construction Industry Payments Act 2004 (Qld) s 31, s 100

Uniform Civil Procedure Rules r 667, r 791

Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases cited:

Brodyn Pty Ltd v Davenport & Anor (2004) NSWCA 394

COUNSEL:

L C Alford for the plaintiff/respondent

P W Hackett for the defendant/applicant

SOLICITORS:

Ray Barber for the plaintiff/respondent

Morgan Conley Solicitors for the defendant/applicant

1. This application by Kjerulf David Ainsworth sought:

   A declaration:

   §that RJ Neller Building Pty Ltd had notice that proceedings in the District Court at Brisbane (BD1247/2007) had been commenced prior to obtaining judgment on 3 May 2004 by filing an adjudication certificate pursuant to section 31 of the Building and Construction Industry Payments Act 2004 (the Act);

   Orders:

   §that the enforcement warrant issued by the District Court at Maroochydore on 6 March 2008 be set aside pursuant to rules 667 and 791 of the Uniform Civil Procedure Rules (UCPR);

   §that enforcement of the judgment of 3 May 2007 be stayed until further order pursuant to rule 800 of UCPR;

   §for costs on the indemnity basis.

1. At the hearing, counsel for the applicant proposed that orders be made staying the enforcement warrant, granting liberty to apply and that the costs of the application be part of the parties costs in proceeding 1247 of 2007 upon the applicant’s undertaking not to encumber transfer assign or otherwise deal with certain real property upon which the respondent had performed building or construction work so as to reduce his equity therein below $150,000 pending final determination of proceeding 1247 of 2007.

Proceeding BD1247 of 2007

1. On 2 May 2007 Ainsworth filed a claim and statement of claim in the District Court at Brisbane.  The claim sought:

   Declarations:

   §he was not indebted to RJ Neller Building Pty Ltd (Neller) in any amount;

   §an adjudicator appointed under the Act one, Philip Martin (Martin) had no jurisdiction to make a determination pursuant to the Act;

   §the adjudicator wrongfully determined liability pursuant to the Act;

   §the adjudication was invalid.

Orders:

§that the adjudication be set aside;

§for damages for loss suffered by Ainsworth due to defective and unfinished work of Neller;

§for damages for legal expenses incurred by Ainsworth…