SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd - [2019] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201

PARTIES:

SHA PREMIER CONSTRUCTIONS PTY LTD
ACN 056 777 318
(appellant/applicant)
v
NICLIN CONSTRUCTIONS PTY LTD
ACN 614 074 065
(respondent)

FILE NO/S:

Appeal No 4175 of 2019
Appeal No 4177 of 2019
Appeal No 4178 of 2019
DC No 762 of 2019
DC No 768 of 2019
DC No 769 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – Unreported, 28 March 2019 (McGill SC DCJ)

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2019

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDERS:

1.   In CA 4177 of 2019 and CA 4178 of 2019, grant leave to appeal.

2.   In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019, allow the appeals.

3.   Set aside the orders made on 28 March 2019 in 762 of 2019, 768 of 2019, and 769 of 2019.

4.   In each of 762 of 2019, 768 of 2019, and 769 of 2019, dismiss the originating applications, and in each case the applicant is to pay the respondent’s costs of and incidental to that application.

5.   In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019 the respondent is to pay the appellant’s costs of and incidental to the appeal.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – APPOINTMENT OF SUPERINTENDENT – where the appellant and the respondent entered into a design and construction contract – where a dispute arose regarding progress payment claims made by the respondent which were not paid by the appellant – where the question was raised in the first instance as to whether the payment claims were valid under the Building and Construction Industry Payments Act 2004 (Qld) – where the learned primary judge held in favour for the respondent – where the appellant appeals against the three orders made in the first instance – where the contract required the appointment of a superintendent – where it is contended by the respondent that the appellant, which was the principal of the contract, had nominated themselves as superintendent – where the matter below was decided on the basis that the appellant was the superintendent – where the validity of the payment claims hinged upon the standpoint that the appellant was the superintendent – where the question arose as to whether the appellant being the superintendent could be an implied term to the contract – whether the payment claims were valid – whether the appellant’s status as the superintendent under the contract could be an implied term

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1, cited
Devaugh Pty Ltd v Lamac Developments Pty Ltd [1999] WASCA 280, cited

COUNSEL:

M H Hindman…

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: [2019] QCA 201
Decision Date: 27 September 2019

CaseChat Overview and Summary

In the matter of SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd, the parties were involved in a design and construction contract. The dispute centred around progress payment claims made by the respondent, Niclin Constructions Pty Ltd, which were not paid by the appellant, SHA Premier Constructions Pty Ltd. The court was tasked with determining the validity of these payment claims under the Building and Construction Industry Payments Act 2004 (Qld). The primary judge had ruled in favour of the respondent, but the appellant contested this decision and appealed.

The central legal issues before the court were whether the payment claims were valid and whether the appellant’s status as the superintendent under the contract could be considered an implied term. The respondent argued that the appellant, as the principal of the contract, had nominated itself as the superintendent, while the appellant contended that the superintendent was the person nominated by the principal from time to time. The validity of the payment claims hinged on this distinction, as the appellant's response to the claims was predicated on the assumption that it had not nominated itself as the superintendent.

The court found that there was a substantial basis to doubt the correctness of the primary judge's concession that the appellant had nominated itself as the superintendent. Instead, the court concluded that the contract should be interpreted as requiring the principal to nominate the superintendent from time to time. Consequently, the court allowed the appeal, set aside the orders made in the lower court, dismissed the originating applications, and ordered the respondent to pay the appellant's costs of and incidental to the appeal.

Orders

Orders of the court

1. In CA 4177 of 2019 and CA 4178 of 2019, grant leave to appeal.

2. In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019, allow the appeals.

3. Set aside the orders made on 28 March 2019 in 762 of 2019, 768 of 2019, and 769 of 2019.

4. In each of 762 of 2019, 768 of 2019, and 769 of 2019, dismiss the originating applications, and in each case the applicant is to pay the respondent’s costs of and incidental to that application.

5. In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019 the respondent is to pay the appellant’s costs of and incidental to the appeal.

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

It is unnecessary to reach a final conclusion on whether the Superintendents were validly appointed. It is sufficient to note that there is, in my view, a substantial basis to doubt the correctness of the concession upon which the learned primary judge was invited to proceed.Conclusion The parties were agreed that if the conclusion of this Court was that SHA Premier did not nominate itself as Superintendent, then the response to the payment claim was not efficacious and as a result the judgments below could not be sustained. As will be evident from the reasons above, my conclusion is that SHA Premier as Principal did not nominate itself as Superintendent, but Item 5, on its proper construction, should be read as identifying the Superintendent as being the person nominated by SHA Premier from time to time. The consequence is that the appeal must be allowed and the orders set aside. I would propose the following orders:1.In CA 4177 of 2019 and CA 4178 of 2019, grant leave to appeal.2.In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019, allow the appeals.3.Set aside the orders made on 28 March 2019 in 762 of 2019, 768 of 2019, and 769 of 2019.4.In each of 762 of 2019, 768 of 2019, and 769 of 2019, dismiss the originating applications, and in each case the applicant is to pay the respondent’s costs of and incidental to that application.5.In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019 the respondent is to pay the appellant’s costs of and incidental to the appeal. FLANAGAN J: I agree with the orders proposed by Morrison JA and with his Honour’s reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2019] QCA 201
PARTIES:	SHA PREMIER CONSTRUCTIONS PTY LTD ACN 056 777 318 (appellant/applicant) v NICLIN CONSTRUCTIONS PTY LTD ACN 614 074 065 (respondent)
FILE NO/S:	Appeal No 4175 of 2019 Appeal No 4177 of 2019 Appeal No 4178 of 2019 DC No 762 of 2019 DC No 768 of 2019 DC No 769 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – Unreported, 28 March 2019 (McGill SC DCJ)
DELIVERED ON:	27 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2019
JUDGES:	Sofronoff P and Morrison JA and Flanagan J
ORDERS:	1. In CA 4177 of 2019 and CA 4178 of 2019, grant leave to appeal. 2. In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019, allow the appeals. 3. Set aside the orders made on 28 March 2019 in 762 of 2019, 768 of 2019, and 769 of 2019. 4. In each of 762 of 2019, 768 of 2019, and 769 of 2019, dismiss the originating applications, and in each case the applicant is to pay the respondent’s costs of and incidental to that application. 5. In each of CA 4175 of 2019, 4177 of 2019, and 4178 of 2019 the respondent is to pay the appellant’s costs of and incidental to the appeal.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – APPOINTMENT OF SUPERINTENDENT – where the appellant and the respondent entered into a design and construction contract – where a dispute arose regarding progress payment claims made by the respondent which were not paid by the appellant – where the question was raised in the first instance as to whether the payment claims were valid under the Building and Construction Industry Payments Act 2004 (Qld) – where the learned primary judge held in favour for the respondent – where the appellant appeals against the three orders made in the first instance – where the contract required the appointment of a superintendent – where it is contended by the respondent that the appellant, which was the principal of the contract, had nominated themselves as superintendent – where the matter below was decided on the basis that the appellant was the superintendent – where the validity of the payment claims hinged upon the standpoint that the appellant was the superintendent – where the question arose as to whether the appellant being the superintendent could be an implied term to the contract – whether the payment claims were valid – whether the appellant’s status as the superintendent under the contract could be an implied term BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1, cited Devaugh Pty Ltd v Lamac Developments Pty Ltd [1999] WASCA 280, cited
COUNSEL:	M H Hindman…