Turcinovic v Gebeyehu

DISTRICT COURT OF QUEENSLAND

CITATION:

Turcinovic v Gebeyehu [2011] QDC 215

PARTIES:

HAJRUDIN TURCINOVIC
(Applicant)

AND

JEANTIFE GEBEYEHU
(Respondent)

FILE NO/S:

Misc1070/11

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 September 2011

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs.

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS – Recovery of Monies – adjudication certificate filed in court – whether grounds to stay enforcement of deemed judgment until separate proceedings concluded

Building and Construction Industry Payments Act 2004

RJ Neller Building Proprietary Limited v Ainsworth [2008] QCA 397 – applied.

COUNSEL:

P.J. Trout for the applicant

D.J. Topp for the respondent

SOLICITORS:

1. This is an application to stay enforcement of a judgment which arises as a result of the filing in this Court of an adjudicator’s certificate under the Building and Construction Industry Payments Act 2004 (the Act). Such certificate was filed in this court on 4 April this year as a result of an adjudication in favour of the builder against an owner.

1. The total adjudicated amount was $53,765.96.  An enforcement warrant was issued in respect of the deemed judgment on 23 May 2011.

1. On 7 September this application was made to stay enforcement of the deemed judgment or to stay execution of the enforcement warrant.  What is sought, in effect, is that enforcement of the deemed judgment be stayed until the trial of proceedings which the owner is contemplating bringing against the builder.

1. The application is worded in very broad terms but that, I think, is not the most particular problem with it.  Essentially, what happened here is that there was a contract between the parties in February 2010 to renovate a house on a particular site which involved moving it to a different part of the site and in addition building two new dwelling units on the site, which had the effect of putting three homes on a block of land where there was previously only one.  The site was then, effectively, subdivided into three sites, and one of them has, indeed, since been sold by the owner.

1. The work was largely completed by the latter part of 2010.  There was a final inspection certificate in respect of the three properties provided by a building certifier on 30 November 2010 and the final payment claim was provided on the 17 January 2011.

1. At that stage, there had been some minor complaints about some minor defects but on 30 October 2010, the owner signed a document in which he undertook to pay any moneys outstanding and owing to the builder upon completion and certification of the building on the site.  That undertaking has not been complied with.

1. The final payment claim was for an amount of some $48,387.07.  The owner, in response to that claim, lodged a payment schedule raising various issues.  That matter was submitted for adjudication under the Act and the adjudicator, essentially, found in favour of the builder.

1. One of what seem to have been a large…