Coastal Constructions Pty Ltd, Re [1992] QSC 279

.. ~ --~i \q /·. I. c TRANSCRIPT OF r"···· . ··----····· .. - i r::E\/1:>:~: ... \ ::=:c·~~-:·:;·:::-:: 1::;:-;: .. ;c~tJ . . I Cv;:t ;:·.ep-:;\ir::_; f?v:;..c.u I PROCEEDINGSo~t<3 lfcl -1 1 q :JJ 1 l----·-···-······---·--··--·- ~ Sc.,q~~~ 1Cf State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. Q. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SKOIEN AJ Application No 33 of 1992 IN THE MATTER OF THE CORPORATIONS (QUEENSLAND) ACT IN THE MATTER OF COASTAL CONSTRUCTIONS PTY LTD IN PROVISIONAL LIQUIDATION TOWNSVILLE .. DATE 1 5 I 7 I 9 2 ORDER 1 f ~\t. u . -- 1 of 5 -- 10 20 30 150792 ORDER ~ HIS HONOUR: This is the matter of Re: Coastal Constructions Pty. Ltd. (in Provisional Liquidation). In 1991 - 1992 there was a contract between Queensland Meat Export eo. Pty. Ltd., ("the employer") and Coastal Constructions Pty. Ltd. ("the contractor 11 ) for the doing of construction work. On 6 December 1991 the contractor entered into a sub-contract with the applicant Kemp, ("the sub- contractor") to have him do some of the work. The sub- contractor completed his work on 10 February 1992 and claims that $26,946.53 of the sub-contract price h~s not been paid to him by .the contractor. It seems to be accepted that at all material times from that date on the owner owed the contractor under their head contract an amount of at least $26,946.53. ,Section 5 of the Sub-contractors 1 Charges Act 1974 therefore created in favour of the sub-contractor an entitlement to a 10 () 30 0 40 charge over the money owed by the owner to the contractor, to 40 50 60 the extent of $26,946.53. On 13 Feb~uary 1992 the sub-contractor gave notice to the employer under s.10(1) of intention to claim that charge. On the same date ~e gave notice to the contractor under s.10(2) of having made the claim. It is ~ot suggested that either of these notices was deficient. Section 11(1) thereupon cast ' . upon the employer the duty of retaining the money until ··, direction by the Court hearing the claim. Govl. Prinler. Old. 2 ------- 0 50 60 -- 2 of 5 -- 10 20 ( \ ) 30 ( \ 40 50 60 150792 ORDER ~ Section 11 (3) required the contractor, within 14 days of receiving the notice, to giv~ notice in the prescribed form either that it accepted liability to pay the money or that it disputed the claim. There is nothing before me to show that it did so, but nothing turns on that. See Ronner Pty. Ltd. v. D & R Fabrications Pty. Ltd.(1983) 2 Qd.R. 455 at pages 458-9. In fact it is implicit in the way this application' has been argued that the contractor did not give notice under s.11(3)(a) that it accepted liability to pay the amount claimed. In such a case the employer is required, under s.11(4), to pay the money to the sub-contractor. On 19 March 1992 provisional liquidators were appointed of the contractor. On 1 April 1992 the sub-contractor obtained from the Supreme Cou~t an order giving leave pursuant to s.471(2) of the Companies (Queensland) Act to commence an action against the contractor in liquidation. On 9 April 1992 the sub-contractor issued District Court plaint no. 147 of 1992 claiming the sub-contract sum, 11 pursuant to the provisions of the Sub-contractors' Charges Act 1974. 11 In that action the only defendant named was the contractor. On 15 April 1992 the employer paid the claimed sum less tax into the District Court pursuant to s.11(5). Exhibited correspondence from the employer's solicitors show that the employer was well aware of its obligations under the Act and of the relieving provisions of s.11(5) and (6). It also denies the receipt of any notice from the contractor under Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 5 -- 10 20 30 40 150792 ORDER s.11(3)(a). Under the Act, the only way to enforce the charge (apart from the provisions of s.11(3) and (4) discussed ab~ve) is to bring an action against the person by whom the money is payable, s.12(1 ). That was the employer. SeeS & S Contractors v. Gold Coast Cooperative Plantation Society Limited, (In Liquidation) (1981) Qd.R. 228; Stumann v. Spansteel Engineering Pty. Ltd. (1986) 2 Qd.R. 471. The action is required to be brought where the employer does not make a satisfactory arrangement for paying the sub- 10 20 0 contractor. Presumably that relates back to the provisions () of s. 11 ( 3) a·nd ( 4). It has not been suggested that those provisions have any application here, so the sub-contractor should have sued the employer, and under s.12(2) the contractor would then have had the right to have any contrary claim it might have to the money determined as would any others who might have been interested in the money. See S & S Contractors, supra. I am told that, realising that the employer should h~ye been sued, the sub-contractor has tried to remedy the error. This he did by. serving on 1 May 1992, fresh notices under s.10, 30 () 40 () 50 (identical in all detail but dates to those served on 13 so February 1992) on the employer and the contractor. He then, on 6 May 1992, issued District Court plaint no. 182 of 1992 against the employer and contractor as defendants seeking enforcement of his charge. The contractor being in w w ' Govt. Printer, Old. 4 -- 4 of 5 -- 150792 ( ORDER 10 20 ( 30 ( 40 50 60 liquidation, the sub-contractor now seeks from me leave to sue the contractor nunc pro tunc, pursuant to s.471(2) of the Corporations (Queensland) Act.so as to validate ex post facto\ plaint no. 182 of 1992. The contractor opposes the application. In my opinion, the application must fail. Section 15(1)(b) required the sub-contractor to commence his action against the employer to enforce his charge within two months of giving the notice, that is, by 13 April 1992. He did not do so, and therefore, because of s.15(3), that charge was extinguished. See Re: Jennis Le Blanc Communications Pty. Ltd. (1988) 2 Qd.R. 638. His subsequent statutory notices were based on the same facts and circumstances as the first and sought to revive precisely the same charge. The Act does not permit that. See K G K Constructions Pty. Ltd. v. Tabray Pty. Ltd. & Anor. (1985) 2 Qd.R. 173. I dismiss the summons. I order the applicant to pay the respondent's costs of the application to be taxed. ··, Govt. Pronter, Old. 5 10 20 30 I 40 50 60 -- 5 of 5 --