Ware Building Pty Ltd v Centre Projects Pty Ltd (No 1)

SUPREME COURT OF QUEENSLAND

CITATION:

Ware Building Pty Ltd v Centre Projects Pty Ltd & Anor (No 1) [2011] QSC 424

PARTIES:

WARE BUILDING PTY LTD
ACN 003 503 035
(applicant)
v         
CENTRE PROJECTS PTY LTD
ACN 063 976 303
(first respondent)       
THOMAS WILSON
(second respondent)

FILE NO:

BS 3812 of 2011

DIVISION:

Trial

PROCEEDING:

Civil

DELIVERED ON:

13 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

13-14 October 2011

JUDGE:

Fryberg J

ORDERS:

1.    Application dismissed;

2.    Costs to be assessed; and

3.    Liberty to apply. 

CATCHWORDS:

Contracts – Building, engineering and related contracts – Remuneration – Statutory regulation of entitlement to and recovery of progress payments – Payment claims – Adjudication order – Injunction

Building and Construction Industry Payments Act 2004

COUNSEL:

L Bowden for the applicant

G J Handran for the respondent

SOLICITORS:

Nicholas Radich Solicitors for the applicant

Tucker & Cowen Solicitors for the respondent

HIS HONOUR:  I have before me an application for a declaration that an adjudication, by an adjudicator appointed under the Building and Construction Industry Payments Act 2004, is void and of no effect, and an injunction restraining the first respondent from attempting to enforce the adjudication decision.

The matter arose in this way.  The applicant is a builder.  In 2009 it entered into a contract to complete the construction of a building at Coolangatta.  The building was partially-completed but because a previous builder had left the job, it remained unfinished.  Its shell had been constructed and much of the carpentry had been completed.  Units numbers 7 to 13 had been substantially lined; units 1 to 6 had no lining.  There was a number of other pieces of work outstanding.

The applicant entered into a subcontract with the first respondent effectively in respect of plastering work.  It did so in two stages.  First, it made a contract which did not deal with the question of fire rating, or more accurately, fire rating remediation.  That was because at the time the contract was made in February 2010, a report was still awaited from a company which was expert in advising on fire protection.  It was envisaged in the contract that fire rating remediation which was required in units 9 to 13 would be added to the contract at a subsequent date by an agreed variation value.

A month later the parties executed another document which was in the form of a quotation from the respondent to the applicant.  It purported, on its face, to create a new contract on different terms.  However, the parties have, at all material times, treated the new contract as if it were simply a variation ordered in accordance with the provisions of the original contract, and I shall do so also.

The original contract was to perform work to units 1 to 6 which was quite substantial work, and in relation to units 7 to 13, to repair holes and tidy up the work which had already been done in those units by the previous builder.  The report…