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Spankie v James Trowse Constructions Pty Limited

Spankie v James Trowse Constructions Pty Limited

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SUPREME COURT OF QUEENSLAND

CITATION:

Spankie & Ors v James Trowse Constructions Pty Limited [2010] QCA 355

PARTIES:

DAVID SPANKIE
(first applicant/first appellant)
GAI SPANKIE
(second applicant/second appellant)
NORTHERN INVESTMENT HOLDINGS PTY LIMITED
(third applicant/third appellant)
v
JAMES TROWSE CONSTRUCTIONS PTY LTD
(respondent)

FILE NO/S:

Appeal No 8324 of 2010
SC No 7397 of 2010

DIVISION:

Court of Appeal

PROCEEDINGS:

General Civil Appeal

ORIGINATING COURTS:

Supreme Court at Brisbane

DELIVERED ON:

14 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2010

JUDGES:

Holmes and Fraser and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the appellants and respondent entered into a construction contract and the respondent served a payment claim on the appellants – where the payment claim was adjudicated under Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) – where adjudication decision declared void – where the respondent served on the appellants a subsequent payment claim, claiming an unpaid amount from the earlier claim – where the appellant’s applied for a declaration that the subsequent payment claim was void as an abuse of process or as a second payment claim in contravention of s 17(5) of BCIPA – where the primary judge dismissed the application – whether there is a general implication in BCIPA against the re-agitation of a payment claim in a subsequent claim – whether the respondent’s subsequent payment claim contravened s 17 of BCIPA – whether s 32 of BCIPA excluded the respondent’s right to make the subsequent payment claim for an amount subject to a void adjudication determination

Acts Interpretation Act 1954 (Qld), s 14A
Building and Construction Industry Payments Act 2004 (Qld), s 7, s 8, s 12, s 13, s 17, s 17(1), s 17(2), s 17(5), s 17(6), s 18, s 19, s 20, s 21, s 29, s 31, s 32, s 33
Building and Construction Industry Security of Payment Act 1999 (NSW), s 8(2)(b), s 13(5)

David & Gai Spankie & Northern Investment Holdings Pty Ltd v James Trowse Constructions Pty Ltd & Ors (No. 2) [2010] QSC 166, related
Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117; [2007] QSC 168, distinguished
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69, discussed
Emergency Services Superannuation Board v Robert Sundercomb & Anor [2004] NSWSC 405, cited
John Holland Pty Ltd v Made Contracting Pty Ltd [2008] NSWSC 374, cited
John Holland Pty Ltd v Schneider Electric Buildings Australia Pty Ltd [2010] QSC 159, cited
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, cited
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416, cited
Simcorp Developments and Constructions P/L v…

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: [2010] QCA 355
Decision Date: 14 December 2010

CaseChat Overview and Summary

The appellants, Spankie, brought an appeal against the respondent, James Trowse Constructions Pty Limited, in relation to a dispute concerning a construction contract and a subsequent payment claim. The matter was heard and determined in the Supreme Court of Queensland. The primary issue for the court to decide was whether there exists a general implication in the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) against the re-agitation of a payment claim in a subsequent claim. Additionally, the court needed to determine if the respondent's subsequent payment claim contravened section 17 of the BCIPA and whether section 32 of the BCIPA excluded the respondent's right to make the subsequent payment claim for an amount subject to a void adjudication determination.

The court found that there is no general implication in the BCIPA against the re-agitation of a payment claim in a subsequent claim. The court held that the BCIPA does not preclude a respondent from making a subsequent payment claim for an amount that was subject to a void adjudication determination. The court further found that the respondent's subsequent payment claim did not contravene section 17 of the BCIPA as it was not a second payment claim in contravention of section 17(5) of the BCIPA. The court also held that section 32 of the BCIPA did not exclude the respondent's right to make the subsequent payment claim for an amount subject to a void adjudication determination.

The appeal was dismissed with costs. The court found that the primary judge's decision was correct, and there was no basis to grant the relief sought by the appellants. The appellants' application for a declaration that the subsequent payment claim was void was dismissed. The court's decision clarified the scope and limitations of the BCIPA in relation to the re-agitation of payment claims and the rights of parties under the Act.

Orders

Orders of the court

Appeal dismissed with 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:	Spankie & Ors v James Trowse Constructions Pty Limited [2010] QCA 355
PARTIES:	DAVID SPANKIE (first applicant/first appellant) GAI SPANKIE (second applicant/second appellant) NORTHERN INVESTMENT HOLDINGS PTY LIMITED (third applicant/third appellant) v JAMES TROWSE CONSTRUCTIONS PTY LTD (respondent)
FILE NO/S:	Appeal No 8324 of 2010 SC No 7397 of 2010
DIVISION:	Court of Appeal
PROCEEDINGS:	General Civil Appeal
ORIGINATING COURTS:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2010
JUDGES:	Holmes and Fraser and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the appellants and respondent entered into a construction contract and the respondent served a payment claim on the appellants – where the payment claim was adjudicated under Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’) – where adjudication decision declared void – where the respondent served on the appellants a subsequent payment claim, claiming an unpaid amount from the earlier claim – where the appellant’s applied for a declaration that the subsequent payment claim was void as an abuse of process or as a second payment claim in contravention of s 17(5) of BCIPA – where the primary judge dismissed the application – whether there is a general implication in BCIPA against the re-agitation of a payment claim in a subsequent claim – whether the respondent’s subsequent payment claim contravened s 17 of BCIPA – whether s 32 of BCIPA excluded the respondent’s right to make the subsequent payment claim for an amount subject to a void adjudication determination Acts Interpretation Act 1954 (Qld), s 14A Building and Construction Industry Payments Act 2004 (Qld), s 7, s 8, s 12, s 13, s 17, s 17(1), s 17(2), s 17(5), s 17(6), s 18, s 19, s 20, s 21, s 29, s 31, s 32, s 33 Building and Construction Industry Security of Payment Act 1999 (NSW), s 8(2)(b), s 13(5) David & Gai Spankie & Northern Investment Holdings Pty Ltd v James Trowse Constructions Pty Ltd & Ors (No. 2) [2010] QSC 166, related Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117; [2007] QSC 168, distinguished Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69, discussed Emergency Services Superannuation Board v Robert Sundercomb & Anor [2004] NSWSC 405, cited John Holland Pty Ltd v Made Contracting Pty Ltd [2008] NSWSC 374, cited John Holland Pty Ltd v Schneider Electric Buildings Australia Pty Ltd [2010] QSC 159, cited Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, cited Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416, cited Simcorp Developments and Constructions P/L v…