Australia (Queensland) Cases

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  • 6th March 2009
    Tailored Projects Pty Ltd v Jedfire Pty Ltd [2009] QSC 32
    Contracts – Building, Engineering and related Contracts – Remuneration – Statutory Regulation of Entitlement to and recovery of Progress Payments – Payment Claim – Validity– Service of multiple payment claims in relation to one Reference Date – Whether contract requires a time for service of a payment schedule different from the 10 business days allowed statutorily – Whether estoppel by convention varying time required for service of notice under contract or statutory payment schedule – Whether unconscionable to insist on 5 day period under contract – Whether a fixed price contract or one containing provisional sums or prime cost items - Trade Practices Act 1974 (Cth) s. 87 - Building and Construction Industry Payments Act 2004, s. 10 s.18, s.17(4) and (5), s.14(4), s.18(4), s. 100 -  Abigroup Contractors...
  • 20th February 2009
    Ainsworth v R J Neller Building Pty Ltd & Anor [2009] QDC 26
    Stay of Execution – Whether appropriate case – Where previous applications refused – whether changed circumstances justify stay Costs – Indemnity - Whether appropriate case - Building and Construction Industry Payments Act 2004 (Qld) - Uniform Civil Procedure Rules 1999 (Qld), r 800 - R J Neller Building P/L v Ainsworth [2008] QCA 397
  • 8th January 2009
    Austruct Qld Pty Ltd v Independant Pub Group Pty Ltd [2009] QSC 1
    Building, Engineering and related Contracts - statutory right of debt recovery under s 19 Building and Construction Industry payments Act 2004 (Qld) – where no payment schedule delivered – whether s 19(4)(b)(ii) prevents the respondent arguing that part of claim outside the scope of the contract - PRACTICE AND PROCEDURE – whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on to resist summary judgment despite s 19(4)(b)(ii) of the Building and Construction Industry Payments Act 2004 (Qld) - Building and Construction Industry Payments Act 2004 (Qld), s 12, s 18, s 19, - Queensland Building Services Authority Act 1991, s 42 - Trade Practices Act 1974 (Cth), s 52, s 87 - Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; 67 NSWLR 9 - Brodyn Pty Ltd t/a Time Cost and Quality v Davenport [2004] NSW...
  • 18th December 2008
    Construct Assist Pty Ltd v PDMS Group Pty Ltd [2008] QDC 303
    Summary Judgment – claim under a “construction contract” – Building and Construction Industry Payments Act 2004 – payment claim served by claimant by pre-paid post to respondent’s principal place of business – no payment schedule served by respondent in reply – whether respondent entitled to resist summary judgment application -Uniform Civil Procedure Rules 1999 rr 292, 293 - Building and Construction Industry Payments Act 2004 ss 3, 7, 12, 17, 18, 19, 100 -Brodyn Pty Ltd t/as Time Cost and Quality v Davenport and Anor [2004] NSWCA 394 -  Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 - Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (In Liq) [2005] NSWCA 409 -Swain v Hillman [2001] 1 All ER 91 -
  • 9th December 2008
    R J Neller Building P/L v Ainsworth [2008] QCA 397
    APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where the respondent was successful in an adjudication of its claim for payment from the applicant for work performed under a construction contract – where the respondent obtained an enforcement warrant against property owned by the applicant based upon the adjudication certificate – where the applicant commenced proceedings against the respondent seeking an order that the adjudication be set aside and damages for breach of contract – where the applicant applied to have the enforcement warrant set aside – where the applicant applied for a stay of the enforcement warrant – whether the learned primary judge erred in dismissing the applications – whether this Court may order a stay of the enforcement warrant pursuant to r...
  • 3rd November 2008
    Ainsworth v RJ Neller Building Pty Ltd & Anor [2008] QDC 272
    Uniform Civil Procedure rules r 5, r 165, r 171,r 280, r 483 re Building and Construction Industry Payments Act 2004 s 3 - separate determination that plaintiff a "resident owner" for purposes of the Act (being upon defendant builder's entitlement to bring a payment claim before an adjudicator) - argument that a person ordinarily resident elsewhere could not qualify rejected - plaintiff's claims for declaration that nothing owed to builder (notwithstanding adjudicator's unsatisfied awards in its favour) and for damages for alleged deficiencies in the work sought to be struck out or permanently stayed - grounds for defendant's application included that plaintiff's expert report foreshadowed in the pleading identifying unsatisfactory work as other particulars of it, were not forthcoming, plaintiff had "gutted" the premises so that while his experts had had access to them to examine the work,...
  • 3rd October 2008
    Walton Construction (Qld) Pty Ltd v Salce & Ors [2008] QSC 235
    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
  • 21st August 2008
    J Hutchinson Pty Ltd v Galform Pty Ltd & Ors [2008] QSC 205
    PROCEDURE – PROCEDURAL MATTERS – whether the second payment claim, adjudication application and adjudication were an abuse of process Legislation - Building and Construction Industry Payments Act 2004, s9, s19 - Judicial Review Act 1991 - Supreme Court Act 1995, s48 - Supreme Court Regulations 1998, s4
  • 14th August 2008
    Ainsworth v RJ Neller Building Pty Ltd & Martin [2008] QDC 199
    CATCHWORDS: Building and Construction Industry Payments Act 2004 s 3, s 18, s 24, s 100 - Uniform Civil Procedure Rules r 483 - separate determination (in building dispute with claim and counterclaim) of issue whether plaintiff was (as he asserted) "resident owner" so as to deny jurisdiction to an adjudicator under the Act
  • 1st August 2008
    Bezzina Developers P/L v Deemah Stone (Qld) P/L & Ors [2008] QCA 213
    ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – POWERS, DUTIES AND DISCRETION OF THE ARBITRATOR – GENERALLY – where the first respondent contended that the second respondent (an adjudicator) had erred in law by failing to make a bona fide attempt to value the work in a progress claim submitted to him – where s 26 of the Building and Construction Industry Payments Act 2004 (Qld) required the second respondent to decide and not to inquire when making an adjudication decision – where subsections (c) and (d) of s 26(2) required the second respondent to consider the payment claim and submissions as well as any payment schedules and any submissions in support of it in adjudicating the dispute – where the second respondent’s reasons for the adjudication decision referred to the relevant background matters, parts of the payment schedule, the...