Spankie v James Trowse Constructions Pty Ltd - [2010] QSC 336

[2010] QSC 336

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

PETER LYONS J

No 7397 of 2010

DAVID SPANKIE & OTHERS	Applicant
and
JAMES TROWSE CONSTRUCTIONS PTY LIMITED & OTHERS	Respondent

BRISBANE

..DATE 04/08/2010

ORDER

HIS HONOUR: By a payment claim dated the 31st of August 2009 the respondent claimed an amount under a building contract between it and the applicants which included two items. They are described as adjudicated variations and variations totalling an amount a little under $446,000.

That led to adjudication proceedings under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). In a Judgment delivered on 19 May 2010 Philip McMurdo J declared that the decision of the adjudicator made as a consequence of that claim was void.

In a payment claim dated the 31st of May 2010 the respondent claimed those two items. Subsequent steps have resulted in an adjudication application. The parties have reached an agreement about the extension of time for the determination of that application to permit these proceedings to be determined.

The applicant seeks a declaration that the second payment claim is void and injunctive relief. It also contends that the issue of the second payment claim constitutes an abuse of the processes of BCIPA. In essence the question of abuse of process, it seems to me, depends upon the resolution of the first question. That is to say, if the second payment claim is not authorised by the Act then its issue is an abuse of the processes of the Act. On the other hand, if it is authorised by the Act, then it seems to me that a separate submission that it is an abuse of process cannot be maintained. However, I understand the applicant to maintain both grounds for seeking relief.

The applicants’ position is based, essentially, on two contentions. The first contention is that the BCIPA does not permit the making of successive payment claims for identical amounts for the same work, regardless of whether another reference date has passed, and the second claim is sought to be related to it.

Alternatively, they submit that under the present contract there is not a second reference date.

I propose to commence by dealing with the first contention, which raises issues about the construction of the BCIPA.

Section 12 provides that from each reference date under a construction contract a person is entitled to a progress payment if the person has undertaken to carry out construction work under the contract. It seems not to be controversial that the qualification describing the person means that the person has promised to carry out construction work under the contract.

The term "reference date," is defined in Schedule 2 of the BCIPA, so far is as relevant for present purposes, as a date worked out under the contract as the date on which a claim for a progress payment may be made for construction work carried out under the contract.
At this point I do not propose to…

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] QSC 336
Decision Date: 04/08/2010

CaseChat Overview and Summary

The case of Spankie v James Trowse Constructions Pty Ltd involved the applicants, David Spankie and others, seeking a declaration that a second payment claim made by the respondent, James Trowse Constructions Pty Ltd, was void and requesting injunctive relief. They also argued that the issuance of the second payment claim constituted an abuse of the processes under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA). The central legal issue was whether the BCIPA permits successive payment claims for identical amounts for the same work. The applicants contended that the Act does not allow such claims, regardless of whether another reference date has passed. Alternatively, they argued that the contract between the parties did not provide for a second reference date.

The court examined the provisions of the BCIPA, particularly section 17, which outlines the process for making payment claims. Section 17(5) states that a person cannot serve more than one payment claim in relation to each reference date, but section 17(6) allows a claimant to include an amount that has been the subject of a previous claim. The court found that the natural reading of section 17(6) suggests that a fresh claim may be made for an amount that was the subject of a previous claim after another reference date has passed. Additionally, the court considered the objects of the BCIPA, which include ensuring the ability to recover progress payments, and concluded that the construction of section 17 that allows for a second payment claim was consistent with the purpose of the Act.

Furthermore, the court rejected the applicants' argument that there was no second reference date under the contract, finding that the contract permitted progress claims regardless of whether work was done in the month. Therefore, the court held that the second payment claim was authorised by the Act, and the applicants' claims were dismissed. The court also ordered the applicants to pay the respondents' costs on a standard basis.

Orders