Stokes Wheeler Pty Ltd v Herriot - [2003] QDC 333

DISTRICT COURT OF QUEENSLAND

CITATION:
Stokes Wheeler Pty Ltd v Herriot [2003] QDC 333

PARTIES:
STOKES WHEELER PTY LTD (ACN 080 554 623)

Plaintiff

and

IAIN HERRIOT

Defendant

FILE NO/S:
D347/2003

DIVISION:
Civil

PROCEEDING:
Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:
22 August 2003

DELIVERED AT:
Southport

HEARING DATE:
28 July 2003

JUDGE:
Alan Wilson SC DCJ

ORDER:
Judgment for the plaintiff against the defendant in the sum of $32,947.30, and interest under clause 42.9 of the contract between the plaintiff and the defendant from 17 June 2002 to the date of this judgment.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRCTION OF PARTICULAR CONTRACT – Where defendant engaged plaintiff to undertake building work, pursuant to a building contract incorporating Australian Standards AS2124-1992 – where plaintiff issued progress claim – where superintendent appointed under contract issued a payment certificate in respect of that progress claim outside the periods provided under the contract – whether progress claim was validly issued – meaning and effect of clause 42.1 of the building contract – whether defendant should be granted a stay of execution of judgment

Cases considered:

Algons Engineering Pty Ltd v Abigroup Constructions Pty Ltd (unreported, Supreme Court of NSW, Rolfe J, 14 October 1997)
Carroll v Jensen (1900) 10 QLJ 60
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2003] NSWCA 4
Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305
Daysea Pty Ltd v Watpac Pty Ltd [2001] QCA 49

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Foster & Ors v Northern Land Council (1998) NTSC 62

Japaul Pty Ltd v St Hilliers (Qld) Pty Ltd, unreported
McMaster Pty Ltd v Redcliff City Council [2000] QSC 92 McPhee v Zarb [2002] QSC 4
Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd (1995) 2 Qd R 521
The Commonwealth v Clark (1994) 2 VR 333
Williams v Spautz (1992) 174 CLR 509
Zauner Construction Pty Ltd v No. 2 Pitt Street Pty Ltd [2001] VSC 154

COUNSEL:
Mr T Matthews – applicant/plaintiff
Mr S Sheaffe – respondent/defendant

SOLICITORS:
Dibbs Barker Gosling – applicant/plaintiff
McLaughlins – respondent/defendant

The plaintiff seeks summary judgment pursuant to UCPR r 292(1), under which judgment may be entered if the Court is satisfied that a defendant has no real prospect of successfully defending all or part of a claim, and there is no need for a trial of the claim (or part of it)[1].
[1] UCPR r 292(2); as to the nature of the test under the UCPR, see McPhee v Zarb [2002] QSC 4

The plaintiff as builder and the defendant as developer entered into a contract to renovate an existing commercial building for a contract sum of $337,236.90. The contract was in the form of Australian Standard AS2124-1992, with special conditions. Conrad & Gargett was appointed to the office of Superintendent under the contract. The plaintiff commenced work at the end of January 2002, and the works were certified for practical…

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: [2003] QDC 333
Decision Date: 22 August 2003

CaseChat Overview and Summary

Stokes Wheeler Pty Ltd, a building contractor, engaged Herriot to undertake construction work in accordance with a building contract that incorporated Australian Standards AS2124-1992. Stokes Wheeler issued a progress claim for payment, but the superintendent appointed under the contract issued a payment certificate outside the periods provided under the contract. Herriot subsequently sued Stokes Wheeler for the amount of the progress claim, leading to a dispute over the validity of the progress claim and the meaning and effect of clause 42.1 of the building contract. Stokes Wheeler argued that the progress claim was invalid because the payment certificate was issued outside the specified periods. The court had to determine whether the progress claim was validly issued and the meaning and effect of clause 42.1 of the building contract.

The court considered the language of the contract and found that the progress claim was validly issued as it was made in accordance with the provisions of the contract. The court also held that clause 42.1 of the building contract meant that the superintendent's authority to issue a payment certificate was limited to the periods specified in the contract, and any payment certificate issued outside those periods was invalid. However, the court found that the invalidity of the payment certificate did not affect the validity of the progress claim. The court also rejected Stokes Wheeler's argument for a stay of execution of judgment.

The court held that the progress claim was validly issued and that clause 42.1 of the building contract did not affect the validity of the progress claim. The court found that the invalidity of the payment certificate did not affect the validity of the progress claim, and therefore, the plaintiff was entitled to payment. The court also rejected the defendant's argument for a stay of execution of judgment. The court ordered that judgment be entered for the plaintiff against the defendant in the sum of $32,947.30, and interest under clause 42.9 of the contract from 17 June 2002 to the date of this judgment.

Orders

Orders of the court

Judgment for the plaintiff against the defendant in the sum of $32,947.30, and interest under clause 42.9 of the contract between the plaintiff and the defendant from 17 June 2002 to the date of this judgment.

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:	Stokes Wheeler Pty Ltd v Herriot [2003] QDC 333
PARTIES:	STOKES WHEELER PTY LTD (ACN 080 554 623) Plaintiff and IAIN HERRIOT Defendant
FILE NO/S:	D347/2003
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	22 August 2003
DELIVERED AT:	Southport
HEARING DATE:	28 July 2003
JUDGE:	Alan Wilson SC DCJ
ORDER:	Judgment for the plaintiff against the defendant in the sum of $32,947.30, and interest under clause 42.9 of the contract between the plaintiff and the defendant from 17 June 2002 to the date of this judgment.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRCTION OF PARTICULAR CONTRACT – Where defendant engaged plaintiff to undertake building work, pursuant to a building contract incorporating Australian Standards AS2124-1992 – where plaintiff issued progress claim – where superintendent appointed under contract issued a payment certificate in respect of that progress claim outside the periods provided under the contract – whether progress claim was validly issued – meaning and effect of clause 42.1 of the building contract – whether defendant should be granted a stay of execution of judgment Cases considered: Algons Engineering Pty Ltd v Abigroup Constructions Pty Ltd (unreported, Supreme Court of NSW, Rolfe J, 14 October 1997) Carroll v Jensen (1900) 10 QLJ 60 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2003] NSWCA 4 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Daysea Pty Ltd v Watpac Pty Ltd [2001] QCA 49 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Foster & Ors v Northern Land Council (1998) NTSC 62 Japaul Pty Ltd v St Hilliers (Qld) Pty Ltd, unreported McMaster Pty Ltd v Redcliff City Council [2000] QSC 92 McPhee v Zarb [2002] QSC 4 Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd (1995) 2 Qd R 521 The Commonwealth v Clark (1994) 2 VR 333 Williams v Spautz (1992) 174 CLR 509 Zauner Construction Pty Ltd v No. 2 Pitt Street Pty Ltd [2001] VSC 154
COUNSEL:	Mr T Matthews – applicant/plaintiff Mr S Sheaffe – respondent/defendant
SOLICITORS:	Dibbs Barker Gosling – applicant/plaintiff McLaughlins – respondent/defendant