Queensland University of Technology v Project Constructions
[2002] QCA 224
Court of Appeal (Qld)|2002-06-25|Before: Davies JA, Mullins and Holmes JJSeparate reasons, for judgment of each member of the Court, each concurring as to the orders, made.
PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT - breach
of building
contract – withholding of payment by plaintiff - appeal against dismissal
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND –PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT - breachof buildingcontract – withholding of payment by plaintiff - appeal against dismissalof application for summary judgment andstriking out of plaintiff’sstatement of claim, on the basis that no reasonable cause of action disclosed– whether plaintiffhas a ‘real prospect of succeeding on itsclaim’CONTRACTS – BUILDING, ENGINEERING AND RELATEDCONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS ANDIMPLIED CONDITIONS – DISCHARGE OF CONTRACT ON DEFAULT AND LIKE GROUNDS -whether cl 44.4(a), which provides for “thewhole [or part] of the workremaining to be completed” referred to entire projectCONTRACTS– BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT –CONSTRUCTION OF PARTICULAR CONTRACTS ANDIMPLIED CONDITIONS – DISCHARGE OFCONTRACT 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, consideredAlucraft Pty Ltd (In Liquidation) v Grocon
Ltd (Supreme Court of Victoria Nos. 4683 and ors of 1990, 13 May 1994, Smith
J, unreported), consideredDaysea Pty Ltd v Watpac Australia Pty Ltd
[2001] QCA 49, (Appeal no 9325 of 2001, 23 February 2001),
appliedFancourt v Mercantile Credits Limited (1982) 15 CLR 87,
consideredGeneral Steel Industries v Commissioner for Railways (NSW)
No 10376 of 1991, 13 September 1993, Ashley J, unreported),
consideredMcCosker v Lovett (1995) 12 BCL 146,
consideredMcLachlan v Nourse [1928] SAStRp 49
[1928] SASR 230,
consideredMerritt Cairns Constructions Pty Ltd v Wulguru Heights Pty
Ltd [1995] QCA 273
[1995] 2 Qd R 521, appliedMinson Nacap Pty Ltd v Aquatec-Maxcon
Pty Ltd (2000) 17 BCL 269, consideredOwnit Homes Pty Ltd v
Batchelor [1983] 2 Qd R 124, consideredRe Concrete Constructions
Group Pty Ltd [1997] 1 Qd R 6, consideredSwain v Hillman [2001]
All ER 91, appliedThree Rivers District Council v Bank of England (No.
3) [2001] UKHL 16
[2001] 2 All ER 513, applied
Judgment (18 paragraphs)
[1]
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'
[2]
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
[3]
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.
[4]
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