Vadasz v Bloomer Constructions (Qld) Pty Ltd

Case [2009] QSC 261


SUPREME COURT OF QUEENSLAND

CITATION: 

Vadasz v Bloomer Constructions (Qld) Pty Ltd [2009] QSC 261

PARTIES:

MICHAEL CHRISTOPHER VADASZ TRADING AS AUSTRALIAN PILING COMPANY

(ABN 70 564 737 20 5)

Plaintiff

v

BLOOMER CONSTRUCTIONS (QLD) PTY LIMITED

(ACN 071 344 100)

Defendant

FILE NO/S:

BS6628/09 and BS6449/09

DIVISION:

Trial Division

PROCEEDING:

Applications

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

3 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

2 September 2009

JUDGE:

Douglas J

ORDER:

   [1]      Dismiss the defendant’s application for a stay of the judgment for the plaintiff in the sum of $415,079.50 obtained pursuant to the Building and Construction Industry Payments Act 2004;

   [2]      Order that the sum of $430,498.76 paid into court by the defendant pursuant to the consent order dated 23 June 2009 and any accretions thereon be paid out as to $65,224.00 to Independent Reinforcing Supplies Pty Ltd and, as to the balance, to the solicitors for the plaintiff, on their undertaking to pay the other two creditors referred to in the proceedings, Wagners Concreting Pty Ltd and Dellit Concreting, within 48 hours of receipt of the funds.

   [3]      Order that the defendant pay the plaintiff’s costs of and incidental to each application in matter 6628 of 2009;

   [4]      Further order that the applicant, Bloomer Constructions (Qld) Pty Ltd, pay the second respondent’s, Michael Christopher Vadasz’s, costs of and incidental to the application in BS6449 of 2009.

   [5]      Further order in matter BS6449 of 2009 that paragraph 1 of the order made by consent before the Chief Justice on 23 June 2009 be dissolved.

CATCHWORDS:

CONTRACT — BUILDING AND CONSTRUCTION — where plaintiff has recovered adjudication determination and judgment against defendant — where plaintiff is indebted to subcontractors and does not fully reveal his financial circumstances — where defendant asserts cross-claim for damages and defective works — defendant seeks stay and retention of money paid into Court by it — whether refusal of stay will cause irreparable prejudice. 

Building and Construction Industry Payments Act 2004 s 100

Bloomer Constructions (Qld) Pty Ltd v O’Sullivan & Anor [2009] QSC 220, referred.
Grosvenor Constructions (NSW) Pty Ltd (In administration) v Musico [2004] NSWSC 344, followed.
Herscho v Expile Pty Ltd [2004] NSWCA 468, followed.
McLaughlin’s Family Restaurant v Cordukes Ltd [2004] NSWCA 447, followed.
Queensland Bulk Water Supply Authority v McDonald Keen Group Ltd Pty [2009] QSC 165, followed.
RJ Neller Building Pty Ltd v Ainsworth [2008] QCA 397, applied.
Specialised Explosives Blasting & Training Pty Ltd v Huddy’s Plant Hire Pty Ltd [2009] QCA 254, applied.
Taylor Projects Group Pty Ltd v Brick Dept Pty Ltd [2005] NSWSC 571, applied.
Veolia Water Solutions v Kruger Engineering [No 3] [2007] NSWSC 459, followed.

COUNSEL:

Mr J B Sweeney for the plaintiff
Mr M M Stewart SC and Mr G D Beacham for the defendant

SOLICITORS:

Michael Sing Lawyers for the plaintiff
Romans and Romans Lawyers for the defendant

  1. The plaintiff, Mr Vadasz, applies for an order that a sum…

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Details
AGLC
Vadasz v Bloomer Constructions (Qld) Pty Ltd [2009] QSC 261
Case
[2009] QSC 261
Decision Date

CaseChat Overview and Summary

In the matter of Vadasz v Bloomer Constructions (Qld) Pty Ltd, the plaintiff, Vadasz, sought recovery of a sum owed to him under a contract for building and construction works. Vadasz had obtained an adjudication determination and judgment against Bloomer Constructions, the defendant, for the sum of $415,079.50. However, Vadasz had not fully disclosed his financial circumstances to the court, owing debts to various subcontractors. Bloomer Constructions, in response, asserted a cross-claim for damages and defective works. Bloomer Constructions further sought a stay of the judgment in favour of Vadasz and the retention of monies paid into the Court by it. The primary issue before the court was whether the refusal of a stay would cause irreparable prejudice to Bloomer Constructions.

The court considered the evidence and submissions from both parties. The court found that Bloomer Constructions had not demonstrated that the refusal of a stay would result in irreparable prejudice. Bloomer Constructions had failed to provide sufficient evidence to support their claim for defective works, and their cross-claim was therefore dismissed. The court also considered the equities of the situation, including Vadasz's financial situation and the amount of money at stake. The court concluded that the refusal of a stay would not cause irreparable prejudice to Bloomer Constructions, and the application for a stay was dismissed.

In its orders, the court dismissed Bloomer Constructions' application for a stay of the judgment in favour of Vadasz. The court ordered that the sum of $430,498.76 paid into court by Bloomer Constructions be distributed to Vadasz's creditors, with the balance to be paid to Vadasz's solicitors, subject to their undertaking to pay the remaining creditors within 48 hours. The court also ordered Bloomer Constructions to pay Vadasz's costs of and incidental to the application. Additionally, the court ordered Bloomer Constructions to pay Vadasz's costs of and incidental to a previous application in the matter. Finally, the court dissolved a previous consent order made between the parties.

Orders

Orders of the court

[1] Dismiss the defendant’s application for a stay of the judgment for the plaintiff in the sum of $415,079.50 obtained pursuant to the Building and Construction Industry Payments Act 2004;

[2] Order that the sum of $430,498.76 paid into court by the defendant pursuant to the consent order dated 23 June 2009 and any accretions thereon be paid out as to $65,224.00 to Independent Reinforcing Supplies Pty Ltd and, as to the balance, to the solicitors for the plaintiff, on their undertaking to pay the other two creditors referred to in the proceedings, Wagners Concreting Pty Ltd and Dellit Concreting, within 48 hours of receipt of the funds.

[3] Order that the defendant pay the plaintiff’s costs of and incidental to each application in matter 6628 of 2009;

[4] Further order that the applicant, Bloomer Constructions (Qld) Pty Ltd, pay the second respondent’s, Michael Christopher Vadasz’s, costs of and incidental to the application in BS6449 of 2009.

[5] Further order in matter BS6449 of 2009 that paragraph 1 of the order made by consent before the Chief Justice on 23 June 2009 be dissolved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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