Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd - [2011] QSC 155

SUPREME COURT OF QUEENSLAND

CITATION:

Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155

PARTIES:

VANTAGE HOLDINGS PTY LTD (ACN 097 178 240)
(plaintiff)
v
JHC DEVELOPMENT GROUP PTY LTD
(ACN 083 315 393) TRADING AS JHC DEVELOPMENT GROUP (BN 2063691)
(defendant)

FILE NO:

11525 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2011

JUDGE:

Daubney J

ORDERS:

1.    The plaintiff’s application for summary judgment is dismissed;

2.    The defendant’s application for a stay is dismissed;

3.    The defendant shall file and serve its defence within 14 days;

4.    This proceeding shall be remitted to the District Court;

5.    The costs of each application shall be reserved.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - where the plaintiff claims payment of outstanding balances by the defendant – where the plaintiff served claims for progress payments.

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff files an application for summary judgment – where the application is by its express terms made pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the defendant had filed a notice of intention to defend – whether the application is one for judgment pursuant to the Building and Construction Industry Payments Act 2004 (Qld).

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the defendant files an application seeking that the proceeding be stayed – where the stay is sought pursuant to the Court’s inherent jurisdiction and pursuant to s 53 of the Commercial Arbitration Act 1990 (Qld) – whether the matter is “a matter agreed to be referred to arbitration”.

Building and Construction Industry Payments Act 2004 (Qld), ss 15, 18, 19
Commercial Arbitration Act 1990 (Qld), s 53
Queensland Building Services Authority Act 1991 (Qld), s 67P
Trade Practices Act 1974 (Cth), s 52
Uniform Civil Procedure Rules 1999 (Qld), rules 16(g), 139, 144, 292

Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2005] NSWCA 49, cited
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119, cited
R J Neller Building Pty Ltd v Ainsworth[2009] 1 Qd R 390, cited
Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405, cited
Sail Isle v Body Corporate for Surfers Aquarius [2006] QDC 109, cited

COUNSEL:

S B Whitten for the plaintiff
D Logan for the defendant

SOLICITORS:

Mills Oakley Lawyers for the plaintiff
Pan & Partners Lawyers for the defendant

This proceeding was commenced by a claim and statement of claim filed on

21 October 2010. Before service was effected, the plaintiff sought and obtained leave to file an amended claim and amended statement of…

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: [2011] QSC 155
Decision Date: 3 June 2011

CaseChat Overview and Summary

In the matter of Vantage Holdings Pty Ltd versus JHC Developments Group Pty Ltd, the plaintiff sought to recover outstanding balances under a building contract from the defendant. The proceedings were before the Supreme Court of Queensland, where the plaintiff had filed an application for summary judgment under rule 292 of the Uniform Civil Procedure Rules 1999 (Qld). The legal issues central to this case involved whether the defendant had a valid defence to the plaintiff's claim, and if the summary judgment application was correctly made. Additionally, the court needed to determine if the defendant's application to stay the proceedings was valid, particularly in light of the defendant's failure to file a notice of intention to defend and the statutory provisions of the Building and Construction Industry Payments Act 2004 (Qld).

The court meticulously reviewed the statutory framework governing the building and construction industry, focusing on the procedural steps required under the Uniform Civil Procedure Rules and the Building and Construction Industry Payments Act. It was established that the defendant had not filed a notice of intention to defend within the prescribed period, which ordinarily would have entitled the plaintiff to seek summary judgment. However, the court held that the plaintiff's application did not strictly comply with the requirements of the Act, leading to the dismissal of the summary judgment application. Regarding the stay application, the court found that the defendant had not demonstrated any grounds warranting a stay of the proceedings under the inherent jurisdiction or section 53 of the Commercial Arbitration Act 1990 (Qld). The court emphasised that the matter had not been agreed to be referred to arbitration.

Following the court's reasoning, it dismissed both the plaintiff’s application for summary judgment and the defendant’s application for a stay. The court mandated the defendant to file and serve its defence within 14 days and ordered that the proceeding be remitted to the District Court. The costs of both applications were reserved, pending further orders or determinations.

Orders

Orders of the court

1. The plaintiff’s application for summary judgment is dismissed;

2. The defendant’s application for a stay is dismissed;

3. The defendant shall file and serve its defence within 14 days;

4. This proceeding shall be remitted to the District Court;

5. The costs of each application shall be reserved.

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:	Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155
PARTIES:	VANTAGE HOLDINGS PTY LTD (ACN 097 178 240) (plaintiff) v JHC DEVELOPMENT GROUP PTY LTD (ACN 083 315 393) TRADING AS JHC DEVELOPMENT GROUP (BN 2063691) (defendant)
FILE NO:	11525 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	3 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28 January 2011
JUDGE:	Daubney J
ORDERS:	1. The plaintiff’s application for summary judgment is dismissed; 2. The defendant’s application for a stay is dismissed; 3. The defendant shall file and serve its defence within 14 days; 4. This proceeding shall be remitted to the District Court; 5. The costs of each application shall be reserved.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - where the plaintiff claims payment of outstanding balances by the defendant – where the plaintiff served claims for progress payments. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the plaintiff files an application for summary judgment – where the application is by its express terms made pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the defendant had filed a notice of intention to defend – whether the application is one for judgment pursuant to the Building and Construction Industry Payments Act 2004 (Qld). PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – STAYING PROCEEDINGS – where the defendant files an application seeking that the proceeding be stayed – where the stay is sought pursuant to the Court’s inherent jurisdiction and pursuant to s 53 of the Commercial Arbitration Act 1990 (Qld) – whether the matter is “a matter agreed to be referred to arbitration”. Building and Construction Industry Payments Act 2004 (Qld), ss 15, 18, 19 Commercial Arbitration Act 1990 (Qld), s 53 Queensland Building Services Authority Act 1991 (Qld), s 67P Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 1999 (Qld), rules 16(g), 139, 144, 292 Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2005] NSWCA 49, cited Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119, cited R J Neller Building Pty Ltd v Ainsworth[2009] 1 Qd R 390, cited Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405, cited Sail Isle v Body Corporate for Surfers Aquarius [2006] QDC 109, cited
COUNSEL:	S B Whitten for the plaintiff D Logan for the defendant
SOLICITORS:	Mills Oakley Lawyers for the plaintiff Pan & Partners Lawyers for the defendant