Queensland University of Technology v Project Constructions

PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - PRACTICE UNDER RULES OF COURT - SUMMARY JUDGMENT - breach of building contract - withholding of payment by plaintiff - appeal against dismissal of application for summary judgment and striking out of plaintiff's statement of claim, on the basis that no reasonable cause of action disclosed - whether plaintiff has a 'real prospect of succeeding on its claim'

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - DISCHARGE OF CONTRACT ON DEFAULT AND LIKE GROUNDS - whether cl 44.4(a), which provides for "the whole [or part] of the work remaining to be completed" referred to entire project

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - DISCHARGE OF CONTRACT ON DEFAULT AND LIKE GROUNDS - whether "no further payment" in last paragraph of cl 44.4 to be construed as operating to withhold past progress payments.

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - DISCHARGE OF CONTRACT ON DEFAULT AND LIKE GROUNDS - whether upon termination of the contract, the principal may set off his claim for unliquidated damages for failure to complete against the payments to which the contractor has accrued a right - whether the contract has ousted right to set-off

Uniform Civil Procedure Rules 1999 (Qld), r 293(2)

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215, considered

Alucraft Pty Ltd (In Liquidation) v Grocon Ltd (Supreme Court of Victoria Nos. 4683 and ors of 1990, 13 May 1994, Smith J, unreported), considered

Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49, (Appeal no 9325 of 2001, 23 February 2001), applied

Fancourt v Mercantile Credits Limited (1982) 15 CLR 87, considered

General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, applied

Galambos v McIntyre (1974) 5 ACTR 10, applied

Grocon Pty Ltd v Melco Celim Pty Ltd (Victorian Supreme Court No 10376 of 1991, 13 September 1993, Ashley J, unreported), considered

McLachlan v Nourse [1928] SAStRp 49; [1928] SASR 230, considered

Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd [1995] QCA 273; [1995] 2 Qd R 521, applied

Ownit Homes Pty Ltd v Batchelor [1983] 2 Qd R 124, considered

Re Concrete Constructions Group Pty Ltd [1997] 1 Qd R 6, considered

Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16; [2001] 2 All ER 513, applied

R J Douglas SC, with R M Treston, for the appellants