T & M Buckley P/L v 57 Moss Rd P/L [2010] QCA 381

Contract – Building, engineering and related contract – Remuneration – Statutory Regulation of Entitlement to and recovery of progress payments – where respondent served on applicant a payment claim pursuant to s 17 of the Building and Construction Industry Payments Act 2004 (Qld) (‘the Act’) – where applicant failed to serve a payment schedule pursuant to s 18 of the Act – where applicant seeks to appeal summary judgment given in favour of respondent on a part of the payment claim – where respondent seeks to cross-appeal summary judgment – whether the trial judge erred in deciding whether respondent’s payment claim sufficiently identified the relevant construction work or related goods and services to which the claim related and was a valid payment claim for the purposes of the Act – whether applicant should be given leave to appeal – whether respondent should be given leave to cross-appeal - Appeal and new trial – Appeal – Practive and procedure – Queensland - Powers of court - Further evidence – where applicant contended that it had paid the interest component of the payment claim but did not swear to payment in affidavit – where trial judge refused to allow applicant to give evidence as to payment without affidavit in accordance with r 295 Uniform Civil Procedure Rules 1999 (Qld) – where applicant sought to file further affidavit material in appeal proceedings – whether trial judge erred in failing to exercise discretion so as to allow further evidence to be adduced otherwise than by affidavit – whether applicant should be given leave to adduce further evidence by affidavit

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