SUPREME COURT OF QUEENSLAND
CITATION:
Walton Construction (Qld) Pty Ltd v Robert Salce & Ors [2008] QSC 235
PARTIES:
WALTON CONSTRUCTION (QLD) PTY LTD
ACN 100 838 225
Applicant
v
ROBERT SALCE
ABN 88 470 449 246
First Respondent
NATIONAL AUSTRALIA BANK LIMITED
Second Respondent
RUSSELL WELSH
Third Respondent
FILE NO/S:
BS 9051 of 2008
PARTIES:
WALTON CONSTRUCTION (QLD) PTY LTD
ACN 100 838 225
Applicant
v
ROBERT SALCE
ABN 88 470 449 246
First Respondent
RUSSELL WELSH
Second Respondent
RICS AUSTRALASIA PTY LTD
ABN 18 089 873 067
Third Respondent
FILE NO/S:
BS 9057 of 2008
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
3 October 2008
DELIVERED AT:
Brisbane
HEARING DATE:
24 September 2008
JUDGE:
McMurdo J
ORDER:
1. In proceeding number S9057 of 2008, it is declared that the decision made by the second respondent dated 28 August 2008 is void and of no effect.
2. In proceeding number S9051 of 2008:
a. the applicant is discharged from the undertaking as to damages given on 12 September 2008;
b. the first respondent is restrained from proceeding upon the garnishee order pursuant to the adjudication decision by Russell Welsh made on 28 August 2008;
c. the garnishee order issued pursuant to the adjudication decision and judgment obtained thereafter pursuant to the Building and Construction Industry Payments Act 2004 (Qld) be stayed until further or other order of the court;
d. the second respondent be restrained from paying monies to the first respondent pursuant to the garnishee order;
e. the monies paid into court, together with any accretions, are to be paid to the solicitors for the applicant.
3. Mr Salce is to pay the costs of each other party to these proceedings.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – Validity of a decision of an adjudicator – Claim that the adjudicator lacked jurisdiction
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – GENERALLY – Whether a “construction contract” was formed in the circumstances – Where there was already a contract for the provision of the same services at the site with another company – Whether the “agreement” amounted to a “construction contract” or a guarantee for the obligations of that other company
STATUTORY INTERPRETATION – Building and Construction Industry Payments Act 2004 (Qld), s 3
Berem Interiors Pty Ltd v Shaya Constructions (NSW) Pty Ltd [2007] NSWSC 1340
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Cant Contracting Pty Ltd v Casella [2007] 2 Qd R 13
Consolidated Constructions Pty Ltd v Ettamogah Pub (Rouse Hill) Pty Ltd [2004] NSWSC 110, (2004) 20 BCL 373
Hitachi Ltd v O’Donnell Griffin Pty Ltd [2008] QSC 135
J Hutchinson Pty Ltd v Galform Pty Ltd [2008] QSC 205
Intero Hospitality Projects Pty Ltd v Empire Interior (Australia) Pty Ltd [2008] QCA 83
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
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- Case
- [2008] QSC 235
- Decision Date
CaseChat Overview and Summary
The court began by examining the statutory framework under the Building and Construction Industry Payments Act 2004 (Qld). It was necessary to interpret section 3 of the Act to ascertain whether a "construction contract" had indeed been formed. The court found that the existing contract with another company precluded the formation of a new "construction contract" with Walton Construction. Consequently, the "agreement" was determined to be a guarantee, not a construction contract, which rendered the adjudicator's decision invalid due to a lack of jurisdiction. This conclusion was pivotal in invalidating the decision dated 28 August 2008.
Given this determination, the court proceeded to make specific orders to give effect to its findings. The decision of the adjudicator was declared void and of no effect. Furthermore, the court discharged the undertaking as to damages given by Walton Construction, restrained the first respondent from proceeding with the garnishee order, and stayed the garnishee order itself. The monies paid into court, along with any interest earned, were to be returned to Walton Construction's solicitors. Finally, Salce was ordered to pay the costs of the other parties involved in the proceedings.
Orders
Orders of the court
1. In proceeding number S9057 of 2008, it is declared that the decision made by the second respondent dated 28 August 2008 is void and of no effect.
2. In proceeding number S9051 of 2008:
a. the applicant is discharged from the undertaking as to damages given on 12 September 2008;
b. the first respondent is restrained from proceeding upon the garnishee order pursuant to the adjudication decision by Russell Welsh made on 28 August 2008;
c. the garnishee order issued pursuant to the adjudication decision and judgment obtained thereafter pursuant to the Building and Construction Industry Payments Act 2004 (Qld) be stayed until further or other order of the court;
d. the second respondent be restrained from paying monies to the first respondent pursuant to the garnishee order;
e. the monies paid into court, together with any accretions, are to be paid to the solicitors for the applicant.
3. Mr Salce is to pay the costs of each other party to these proceedings.
Background
Background to the litigation
Full text does not contain this section.
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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