Tailored Projects Pty Ltd v Jedfire Pty Ltd - [2009] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Tailored Projects P/L v Jedfire P/L [2009] QSC 32

PARTIES:

TAILORED PROJECTS PTY LTD (ACN 111 819 722)
(applicant)
v
JEDFIRE PTY LTD (ACN 050 414 232)
(respondent)

FILE NO:

BS7539/2008

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

6 March 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

22 October 2008

JUDGE:

Douglas J

ORDER:

Application dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIM – VALIDITY – SERVICE OF MULTIPLE PAYMENT CLAIMS IN RELATION TO ONE REFERENCE DATE – Whether contract requires a time for service of a payment schedule different from the 10 business days allowed statutorily – Whether estoppel by convention varying time required for service of notice under contract or statutory payment schedule – Whether unconscionable to insist on 5 day period under contract – Whether a fixed price contract or one containing provisional sums or prime cost items

Trade Practices Act 1974 (Cth) s. 87

Building and Construction Industry Payments Act 2004, s. 10 s.18, s.17(4) and (5), s.14(4), s.18(4), s. 100

Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2006] VSC 425 referred
Alan Connolly and Co v Commercial Indemnity [2005] NSWSC 339 applied
Clarence St Pty Ltd v ISIS Projects Pty Ltd [2005] NSWCA 391 referred
Daysea Pty Ltd v Watpac Aust Pty Ltd [2001] QCA 49 referred
Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117 referred

Emag Constructions Pty Ltd v Highrise ConcreteContractors (Aust) Pty Ltd [2003] NSWSC 903 referred

F K Gardiner & Sons Pty Ltd v Dimin Pty Ltd [2007] 1 Qd R 10, 15 applied
G W Enterprises Pty Ltd v Xentex Industries Pty Ltd [2006] QSC 399 referred
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 referred
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 referred
Queensland Industrial Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40, 44‑45 referred
Ryledar Pty Ltd v Euphoric Pty Ltd (2007} 69 NSWLR 603, 644-648 referred
Thiess Pty Ltd v Lane Cove Tunnel Nominee Company Pty Ltd [2008] NSWSC 729 considered

Walter Construction Group Ltd v. CPL (SurryHills) Pty Ltd [2003] NSWSC 266 referred

COUNSEL:

S. Armitage for the applicant
R. M. Derrington SC with M. Ambrose for the respondent

SOLICITORS:

Northside Solicitors Pty Ltd for the applicant
Holding Redlich for the respondent

Douglas J: This is a claim under the Building and Construction Industry Payments Act 2004 to recover $956,106.80 with interest or, alternatively, for an order for the payment of $1,066,106.87 as a debt arising out of a building contract and the service of a payment claim purportedly under s. 18 of the Act on 29 July 2008.

Background

The contract provided for the submission of monthly progress claims on the last day of the month in cl. 14(a). Clause 14(c) provided that, on…

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 32
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case of Tailored Projects Pty Ltd v Jedfire Pty Ltd involved a dispute between the two parties over the validity of payment claims submitted under a building contract. The Federal Court of Australia was tasked with determining the legality of the claims, specifically whether the service of multiple payment claims in relation to one reference date complied with the statutory provisions and the contractual terms. The central issue was whether the contract required a different timeframe for the service of a payment schedule compared to the ten business days permitted by statute, and whether there was an estoppel by convention altering the time required for the service of notice under the contract or statutory payment schedule. Additionally, the court needed to decide if it would be unconscionable to enforce the five-day period stipulated in the contract.

The court examined the contractual terms and statutory provisions governing the service of payment claims. It found that the contract did not explicitly require a different timeframe for the service of a payment schedule than that allowed by statute. The court also considered whether the conduct of the parties created an estoppel by convention that varied the contractual or statutory time requirements. However, the court determined that there was no estoppel by convention and that it would not be unconscionable to enforce the five-day period specified in the contract. The court held that the contract was not a fixed price contract but contained provisional sums or prime cost items, which necessitated the strict adherence to the contractual terms.

As a result, the court dismissed the application brought by Tailored Projects Pty Ltd. The decision underscored the importance of strictly adhering to the contractual terms when it comes to the service of payment claims, especially in contracts that include provisional sums or prime cost items. The court's ruling reinforced that statutory provisions do not override clear contractual stipulations unless there is a compelling reason to do so, such as an estoppel by convention.

Orders

Orders of the court

Application dismissed.

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:	Tailored Projects P/L v Jedfire P/L [2009] QSC 32
PARTIES:	TAILORED PROJECTS PTY LTD (ACN 111 819 722) (applicant) v JEDFIRE PTY LTD (ACN 050 414 232) (respondent)
FILE NO:	BS7539/2008
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	6 March 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	22 October 2008
JUDGE:	Douglas J
ORDER:	Application dismissed.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIM – VALIDITY – SERVICE OF MULTIPLE PAYMENT CLAIMS IN RELATION TO ONE REFERENCE DATE – Whether contract requires a time for service of a payment schedule different from the 10 business days allowed statutorily – Whether estoppel by convention varying time required for service of notice under contract or statutory payment schedule – Whether unconscionable to insist on 5 day period under contract – Whether a fixed price contract or one containing provisional sums or prime cost items Trade Practices Act 1974 (Cth) s. 87 Building and Construction Industry Payments Act 2004, s. 10 s.18, s.17(4) and (5), s.14(4), s.18(4), s. 100 Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2006] VSC 425 referred Alan Connolly and Co v Commercial Indemnity [2005] NSWSC 339 applied Clarence St Pty Ltd v ISIS Projects Pty Ltd [2005] NSWCA 391 referred Daysea Pty Ltd v Watpac Aust Pty Ltd [2001] QCA 49 referred Doolan v Rubikcon (Qld) Pty Ltd [2008] 2 Qd R 117 referred Emag Constructions Pty Ltd v Highrise ConcreteContractors (Aust) Pty Ltd [2003] NSWSC 903 referred F K Gardiner & Sons Pty Ltd v Dimin Pty Ltd [2007] 1 Qd R 10, 15 applied G W Enterprises Pty Ltd v Xentex Industries Pty Ltd [2006] QSC 399 referred Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 referred Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 referred Queensland Industrial Wholesalers Ltd v Coutts Townsville Pty Ltd [1989] 2 Qd R 40, 44‑45 referred Ryledar Pty Ltd v Euphoric Pty Ltd (2007} 69 NSWLR 603, 644-648 referred Thiess Pty Ltd v Lane Cove Tunnel Nominee Company Pty Ltd [2008] NSWSC 729 considered Walter Construction Group Ltd v. CPL (SurryHills) Pty Ltd [2003] NSWSC 266 referred
COUNSEL:	S. Armitage for the applicant R. M. Derrington SC with M. Ambrose for the respondent
SOLICITORS:	Northside Solicitors Pty Ltd for the applicant Holding Redlich for the respondent