DISTRICT COURT OF QUEENSLAND
CITATION: Vanbeelen v Blackbird Energy Pty Ltd [2006] QDC 285 PARTIES: HENDERICKUS RUTHERGUS JOHONUS
VANBEELEN T/A H&K CONCRETING AND
CONSTRUCTIONApplicant
VBLACKBIRD ENERGY PTY LTD Respondent FILE NO: BD 1443 of 2006 PROCEEDING: Application to recover a progress payment DELIVERED ON: 23 June 2006 DELIVERED AT: Brisbane HEARING DATES: 29 May and 9 June 2006 JUDGE: Judge Brabazon QC ORDER: Judgment for the Applicant for $158,453.34 CATCHWORDS: BUILDING CONTRACTS – REMUNERATION -
PROGRESS CLAIM – Building and Construction Industry
Payments Act 2004 ss 17,18, 80 and 100 - Whether posting to
a post office box was a posting to a place of business.Statues Building and Construction Industry Payments Act 2004 Acts Interpretation Act 1954, section 39 Workplace Injury Management and Workers’ Compensation
Act 1998, s 92ACases Nepean Engineering Pty Ltd v The Total Process Services Pty
Ltd (2005) NSWCA 409Brookhollow Pty Ltd v R&R Consultants Pty Ltd 30 January
(2006) NSWSC 1ISIS Projects v Clarence Street 2004 NSW SC 714 Multiplex Constructions Pty ltd v Luikens & Anor [2003]
NSWSC 1140
Clarence Street Pty Ltd v Isis Projects Pty Ltd 2005
NSWCA 391Brodyn Pty Ltd v Davenport 2004 61 NSW Citystart Pty Ltd v Deputy Commissioner of Taxation (2006)
WASC 35Sarikaya v Victorian WorkCover Authority BC9706553 Croker v Sydney Institute of TAFE (NSW) 2003 FCA 942 Grayprop Pty Ltd v Maharaj International Pty Ltd [2001]
QSC 387Her Majesty’s Theatre Pty Ltd v Starstruck Pty Ltd (1982) 6
ACLR 535MacRae v St Margaret’s Hospital BC9907034 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Skalkos v TNS Recoveries Pty Ltd (2005) 213ALR311 Deputy Commissioner of Taxation v Barroleg Pty Ltd (1997)
25 ACSR. 167 Bellway Corp Ltd v Ausdrill Ltd (1995) 13 ACLC 1663 Brady v Millgate (1965) 82 WN (Pt 1) (NSW) 282 Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8 Thomas v Johnson (1979) ANZ Conv Rep 159, 163 Kemp v Wanklyn [1894] 1 QB 583 Lewis v Evans (1874) LR 10 CP 297 Re Thundercrest Ltd [1995] 1 BCLC 117 Re Amanatidis Holdings Pty Ltd (1991) 4 ACSR 253 Citystart Pty Ltd v Deputy Commissioner of Taxation (2006)
WASC 35Bowman v Diam Holdings Pty Ltd Barclay Mowlem Construction Ltd v Estate Property
Holdings Pty Ltd (2004) NSWSC 249COUNSEL: Mr L Alford , counsel, for the Applicant
Mr P Hackett, counsel, for the RespondentSOLICITORS: Clewett Corser & Drummond, Solicitors for the Applicant
Morgan Conley, Solicitors for the Respondent1. THE ISSUES
[1] Mr Vanbeelen is a builder. He progressively agreed to renovate seven service station buildings owned by Blackbird Energy throughout South East Queensland. He worked from late 2004 to late 2005, and was paid around $1.1 Million. Differences then developed between himself and Blackbird Energy. He said that he was entitled to a further payment of $158,453.34. Blackbird Energy disputed that claim. It said that he actually owed some money to it, because he had overcharged. He said that the…
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Details
- Case
- [2006] QDC 285
- Decision Date
CaseChat Overview and Summary
Vanbeelen brought an action against Blackbird Energy Pty Ltd, seeking payment for work performed under a building contract. The dispute centred on whether Vanbeelen was entitled to remuneration for his services as per the claims made under the Building and Construction Industry Security of Payment Act. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was the interpretation of section 17(4)(b) of the Act, which concerns the validity of payment claims made by a subcontractor. Specifically, the court had to determine whether this section refers to the time when a particular piece of work was completed or to the completion of all work performed under the contract. The case referenced Barclay Mowlem Construction Ltd v Estate Property Holdings Pty Ltd, which held that the relevant period was any work performed within 12 months prior to the payment claim. The court found that the construction of the provision in the Act meant that as long as any work was done within 12 months of the claim, it could be considered valid. Given that it appeared there was a single contract between the parties, the court allowed the claims based on the Pittsworth and Inglewood work to proceed.
The Supreme Court held that Mr Vanbeelen was entitled to the claimed sum of $158,453.34. The court's decision was based on the interpretation of the security of payment legislation, which was designed to ensure timely payment to those who perform work under a building contract. The court emphasised that the legislation aimed to provide a quick and effective process for resolving payment disputes, ensuring that subcontractors like Vanbeelen received their due payments without undue delay. The court's reasoning aligned with the broader intent of the legislation to maintain a fair and efficient payment process in the construction industry. The court concluded that Mr Vanbeelen was entitled to judgment for the claimed amount, and invited counsel to make submissions on the form of order and costs.
The Supreme Court held that Mr Vanbeelen was entitled to the claimed sum of $158,453.34. The court's decision was based on the interpretation of the security of payment legislation, which was designed to ensure timely payment to those who perform work under a building contract. The court emphasised that the legislation aimed to provide a quick and effective process for resolving payment disputes, ensuring that subcontractors like Vanbeelen received their due payments without undue delay. The court's reasoning aligned with the broader intent of the legislation to maintain a fair and efficient payment process in the construction industry. The court concluded that Mr Vanbeelen was entitled to judgment for the claimed amount, and invited counsel to make submissions on the form of order and costs.
Orders
Orders of the court
Judgment for the Applicant for $158,453.34
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is necessary to keep in mind the proper meaning to be given to s 17(4)(b). Does it refer to the time when a particular piece of work was done, or to the completion of all work performed under the contract? This issue was dealt with in New South Wales in Barclay Mowlem Construction Ltd v Estate Property Holdings Pty Ltd (2004) NSWSC 249. Justice Einstein said that a similar provision in that state meant that the payment claim would be valid as long as any work had been performed under the contract within 12 months prior to the payment claim being made -: “It would seem unlikely that the legislature would have intended that a payment claim in respect of any particular item of construction work (as for example the laying of a particular brick) could only be served within the period of 12 months after completion of the work comprising that particular item.” Therefore, in this case, since it seems likely that there was only one contract, it is appropriate to allow the claims based on the Pittsworth and Inglewood work to be maintained. 12. CONCLUSION It follows that Mr Vanbeelen is entitled to have judgment for the claimed sum of $158,453.34. Counsel may make submissions about the form of order, and costs.
Ratio Decidendi
Legal Principle Established
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