Securcorp Limited v. Civil Mining & Construction P/L - [2009] QSC 249

SUPREME COURT OF QUEENSLAND

CITATION:

Securcorp Limited v Civil Mining & Construction P/L
[2009] QSC 249

PARTIES:

SECURCORP LIMITED
(applicant)

v

CIVIL MINING & CONSTRUCTION PTY LIMITED
(respondent)

FILE NO/S:

BS 7475 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

27 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2009

JUDGE:

McMurdo J

ORDER:

Upon the undertaking by the respondent through its counsel that it will not serve any further payment claim under the Building and Construction Industry Payments Act 2004 (Qld) arising out of the project known as the Riverview Estate subdivision it will be ordered that:

1. The Originating Application is dismissed.

2. There will be no order as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the Building and Construction Industry Payments Act 2004 (Qld) sets out a regime for making a payment claim under a construction contract – where the respondent undertook not to serve any further payment claim – where the applicant seeks a declaration that it is not liable to pay the respondent for building work – where there is extensive evidence on behalf of the applicant that there is no basis for a claim by the respondent – where the lack of evidence to the contrary is due to the respondent’s being directed to file material only in the event that the adjudicator ruled in its favour, which did not occur – whether it should be declared that the applicant is not liable to pay the respondent for building work undertaken

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – OTHER CONDUCT – where the applicant failed to obtain any relief sought in the proceedings – where the applicant argued that it was necessary to bring the proceedings to avoid judgment being entered against it – where the applicant should have waited for the adjudicator’s decision before commencing proceedings – where the respondent did not offer an undertaking not to make a further payment claim until late in the hearing – where the respondent’s initial claim has been held by an adjudicator to have been wrongly made – whether costs should be awarded

Building and Construction Industry Payments Act 2004 (Qld)

Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd & Anor [2005] NSWSC 362, cited

BMD Major Projects Pty Ltd v Wagstaff Piling Pty Ltd & Anor, unreported, Philippides J, 7 June 2005, cited

Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514, cited

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69, considered

Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143; (2005) 226 ALR 362, cited

Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416, cited

COUNSEL:

R M Derrington SC for the applicant
M Hindman for the respondent

SOLICITORS:

Tucker & Cowen for the applicant
Clayton Utz for the respondent

The respondent,…

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.

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Details

Case: [2009] QSC 249
Decision Date: 27 August 2009

CaseChat Overview and Summary

The case of Securcorp Limited v. Civil Mining & Construction P/L involved a dispute over a construction contract and the payment claim process under the Building and Construction Industry Payments Act 2004 (Qld). Securcorp Limited sought a declaration that it was not liable to pay Civil Mining & Construction P/L for building work undertaken. The basis for the claim was extensive evidence provided by Securcorp which suggested that there was no valid basis for Civil Mining & Construction's payment claim. Civil Mining & Construction's failure to provide countervailing evidence was attributed to an instruction that it should only file material if the adjudicator ruled in its favour, which did not occur.

The primary legal issue for the court was whether Securcorp should be declared not liable to pay Civil Mining & Construction for the work undertaken. The court considered the evidence presented by Securcorp and the absence of countervailing evidence from Civil Mining & Construction. The court also examined the procedural steps taken by the parties, including the timing of the proceedings and the conduct of the parties during the hearing. The court determined that while Securcorp had provided sufficient evidence to support its position, the procedural missteps and conduct of the parties warranted consideration in the costs assessment.

The court concluded that although Securcorp had not succeeded in obtaining any relief from the proceedings, it was not liable to pay Civil Mining & Construction for the building work. The court also found that the absence of costs order was appropriate given the circumstances, including the procedural missteps and the lack of an early offer by Civil Mining & Construction to cease further payment claims. The court's decision was influenced by the fact that Civil Mining & Construction had only made the offer to cease further claims late in the hearing, and its initial claim had been found to be wrongly made by an adjudicator.

The final orders of the court were that the originating application by Securcorp would be dismissed, and there would be no order as to costs. The dismissal of the application was contingent upon Civil Mining & Construction providing an undertaking through its counsel that it would not serve any further payment claims under the Building and Construction Industry Payments Act 2004 (Qld) arising from the Riverview Estate subdivision project.

Orders

Orders of the court

Upon the undertaking by the respondent through its counsel that it will not serve any further payment claim under the Building and Construction Industry Payments Act 2004 (Qld) arising out of the project known as the Riverview Estate subdivision it will be ordered that:

1. The Originating Application is dismissed.

2. There will be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Securcorp Limited v Civil Mining & Construction P/L [2009] QSC 249
PARTIES:	SECURCORP LIMITED (applicant) v CIVIL MINING & CONSTRUCTION PTY LIMITED (respondent)
FILE NO/S:	BS 7475 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	27 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2009
JUDGE:	McMurdo J
ORDER:	Upon the undertaking by the respondent through its counsel that it will not serve any further payment claim under the Building and Construction Industry Payments Act 2004 (Qld) arising out of the project known as the Riverview Estate subdivision it will be ordered that: 1. The Originating Application is dismissed. 2. There will be no order as to costs.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the Building and Construction Industry Payments Act 2004 (Qld) sets out a regime for making a payment claim under a construction contract – where the respondent undertook not to serve any further payment claim – where the applicant seeks a declaration that it is not liable to pay the respondent for building work – where there is extensive evidence on behalf of the applicant that there is no basis for a claim by the respondent – where the lack of evidence to the contrary is due to the respondent’s being directed to file material only in the event that the adjudicator ruled in its favour, which did not occur – whether it should be declared that the applicant is not liable to pay the respondent for building work undertaken PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – OTHER CONDUCT – where the applicant failed to obtain any relief sought in the proceedings – where the applicant argued that it was necessary to bring the proceedings to avoid judgment being entered against it – where the applicant should have waited for the adjudicator’s decision before commencing proceedings – where the respondent did not offer an undertaking not to make a further payment claim until late in the hearing – where the respondent’s initial claim has been held by an adjudicator to have been wrongly made – whether costs should be awarded Building and Construction Industry Payments Act 2004 (Qld) Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd & Anor [2005] NSWSC 362, cited BMD Major Projects Pty Ltd v Wagstaff Piling Pty Ltd & Anor, unreported, Philippides J, 7 June 2005, cited Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514, cited Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69, considered Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143; (2005) 226 ALR 362, cited Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416, cited
COUNSEL:	R M Derrington SC for the applicant M Hindman for the respondent
SOLICITORS:	Tucker & Cowen for the applicant Clayton Utz for the respondent