[2011] QDC 172

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1775 of 2011

NATIONAL PLANT AND EQUIPMENT PTY LTD Plaintiff

and

HM HIRE PTY LTD Defendant

BRISBANE

..DATE 11/07/2011

ORDER

CATCHWORDS

Building and Construction Industry Payments Act 2004, s 31 Uniform Civil Procedure Rules 1999, s 667(2), s 807

Application to set aside an assertedly irregularly entered judgment; being a registered adjudication certificate – there is no order of the court or judgment to be set aside - as Act required, affidavit supplied with the certificate showed payments off the adjudicated amount

HIS HONOUR: The Court makes an order in terms of the initialled draft providing that:

(1) Paragraph 1 of the defendant's application filed 10 June 2011 be dismissed.

(2) The defendant pay the plaintiff's costs of and incidental to paragraph 1 of the defendant's application.

(3) By 4 p.m. on 18 July 2011 the defendant serve on the plaintiff a statement of financial position in accordance with rule 807 of the UCPR.

(4) The plaintiff's application filed 7 July 2011 and paragraph 2 of the defendant's application be adjourned to a date to be fixed.

(5) The defendant pay the plaintiff's costs of and incidental to the adjournment referred to in paragraph 4 above, otherwise the costs of and incidental to applications are reserved.

The Court's file commences with a "miscellaneous document" filed on 26 May 2011. It is titled "Registration of Adjudication Certificate as Judgment" making reference to section 31 of the Building and Construction Industry Payments Act 2004.

Stapled to that title document which identifies the lodging solicitors is the adjudication certificate over the seal of Adjudicate Today Pty Ltd dated 23 May 2011. The total adjudicated amount is a total of what might be called the principal sum in issue of a little more than $516,000, interest payable on the so-called "adjudicated amount" and fees and expenses of the adjudicator.

On 1 June 2011, the enforcement creditor, National Plant and Equipment Pty Ltd, applied to the Court for the issue of an enforcement warrant and costs. Nine days later, the enforcement debtor, HM Hire Pty Ltd, as "applicant/defendant", filed an application pursuant to rule 667(2) seeking that under the rule or pursuant to the Court's inherent jurisdiction there be set aside "an irregularly entered judgment, the judgment entered in these proceedings on 27 May 2011". That application went on to seek in the alternative an order that the judgment debt might be paid by instalments.

The judgment creditor seems happy now to accept the other party's descriptions of plaintiff and defendant which are clear enough.

Mr Morrow has appeared for the defendant and explains the defendant's application as based on an understanding of what happens in the Cairns Registry of Court which is where Mr Morrow practises.

On examination of the file, which is a Brisbane one, his assumption that there was a judgment capable of being the subject of an order to set aside that could be made by the Court is belied. There has been no separate judgment issued by the Court, contrary to Mr Morrow's expectation. Indeed, the only reference to the word judgment is in the title of document 1 on the Court file which follows the prescribed form.

The plaintiff's application does not refer to a judgment and there is no order by the Court which might constitute the "money order" referred to in chapter 19 of the UCPR, rule 807, in particular, which is a source of the obligation on the defendant which, for the moment, the plaintiff wants to enforce to satisfy a requirement of the Registry before officers there will be content to issue an enforcement warrant however that rule relates to provision by an enforcement debtor of a statement of financial position.

Mr Morrow's understandable concern about the judgment is attributable to events having made the total adjudicated amount inappropriate. By the date of the certificate, which followed consideration of issues by the adjudicator and a publication of reasons, a sum in excess of $50,000 had been paid off what was owing. The Court hears from the Bar table that there has been at least one more payment since then.

Mr Morrow and his client are concerned that there not be on the record a judgment for an inappropriately high amount which may be publicised to the embarrassment or detriment of the defendant. The gravamen of his application was that the judgment was irregularly entered because it is entered for too much.

Section 31 sets out the procedures to be followed when an adjudication certificate that is sought to be made a judgment of the Court as opposed to being sued upon in a separate proceedings, is inappropriate by means of payment of part of the adjudicated amount. Section 31(2) provides that an adjudication certificate cannot be filed under the section unless it is accompanied by an affidavit by the claimant stating that the whole or a part of the adjudicated amount is unpaid at the time the certificate is filed. An affidavit of Mr Kaluski confirmed the $50,000 payment. Subsection (3) provides, "If the affidavit states that part of the adjudicated amount has been paid, the judgment is for the unpaid part of the amount only".

Therefore, there is a clear distinction between the judgment amount, that is, the amount of the notional judgment which appears never to be perfected in a document issued by the Court and the adjudicated amount which the legislation accepts may often be higher. Subsection (4) contemplates proceedings by a "respondent" to have the judgment set aside but is not presently relevant.

In the circumstances, the Court does not have jurisdiction to make any order on paragraph 1 of the defendant's application.

Whether any order could be made on the plaintiff's application was not contentious, Mr Morrow conceding that it was open to the Court to make orders like the limited one sought today. It does not provide for redirection of debts or anything of that kind, excepting for provision of a statement of financial position under rule 807. A request for that has been made. Rule 807(3) requires that the enforcement debtor must complete and return the statement of financial position within a short time specified. There is no express provision which provides for the Court to order completion and return of such a statement.

Having considered this, I am satisfied that, in combination, rule 371, which was referred to by Mr Stumer, and rule 367 do entitle the Court to make such an order or direction, notwithstanding the rules where the express terms may not refer to it.

...

HIS HONOUR: I am going to add a paragraph 7 to the order:

“The plaintiff have leave to read and file an application for listing for an enforcement hearing and other relief containing a copy of the enforcement warrant redirection of debt.”

...

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