Evans Harch Constructions Pty Ltd v Mooloolaba Development Corporation Ltd & Anor [1991] QSC 341

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBA.NE. 0. 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 CHAMBERS WHITE, Master No 1667 of 1991 EVANS HARCH CONSTRUCTIONS PTY LTD and MOOLOOLABA DEVELOPMENT CORPORATION LIMITED (formerly WOODWARK BAY DEVELOPMENT BAY CORPORATION LIMITED) (RECEIVER AND MANAGER APPOINTED) and HESSALE PTY LTD (RECEIVER AND MANAGER APPOINTED) BRISBANE .. DATE 07/11/91 2.35 P.M. V. JUDGMENT 1 f REVISED coi:•:-Es !SSUF ' 1 Couit F!eporllnG Bureau 1 I Datil-J:! _l { / q ( . J Plaintiff Defendants -- 1 of 5 -- 10 20 30 so 60 071191 JUDGMENT MASTER: The present application is for summary judgment. By II issued 21 Septe~~~r 1991 the plaintif~ specially endorsed writ seeks $156,966.46 being money due and owing from the defendantj I ]Q I pursuant to payment certificate dated 14 August 1989. The certificate was issued by the defendants' architect pursuant to a building contract in writing dated 27 June 1988. The plaintiff also claims interest on that sum pursuant to the terms of contract from 25 August 1989 to date. The claim arises out of construction of The Wharf Mooloolaba. The contract provides ins 10 as to how the contract sum was to be paid. Section 10.01 provides that once each month on a specified date the builder (the plaintiff herein) shall submit to the architect a claim for progress payment. Bys 10.02 that architect shall within 10 days of receipt of the progress payment claim issue a progress certificate. Section 10.07 i provides that the proprietor (in effect the defendants herein) is obliged to pay any progress certificate within 14 days of presentation. Section 10.08 provides for the payment of interest on what is not paid on the progress certificate as I I I I I provided for ins 10.07 if certain procedures are complied . h I Wl t J ! II i 20 30 40 Those provisions have not been complied with and Miss Philippides,who appears for the plaintiff,does not s~ek to i 50 I II maintain that part of the claim but seeks the .. amount in the summons and claims interest pursuant to the Common Law Practice Act. It is conceded by Mr T North, who appears for the defendants, I I that all necessary matters have been proved to establish a I ! 60 ---~ 0 "~·<..-Go..=:t p .. _:,:.,.., .. {"\Id 2 -- 2 of 5 -- 10 30 40 50 60 071".1.91 JUDGMENT progress claim and thus it is unnecessary to consider those matters further. However, he raises as a triable issue the matte~ of construction of the contract. Section 13A of the contract provides as follows:- nThe Proprietor shall not be liable upon any claim by the Builder in respect of any matter arising out of this Agreement unless the claim, together with full particulars thereof, is lodged in writing with the Architect within the periods specified elsewhere in this Agreement, and if not so specified then not later than fourteen (14) days after the date of the occurrence of the events or circumstances onwhich the claim is based or written notice ofintention to make the claim specifying the nature of the claim is lodged with the Architect within that time and the claim, together with full particulars thereof, is lodged in writing withthe Architect not later than fifteen (15) days after the Works reached Practical Completion." 10 20 It is located in the contract after s 13 dealing with arbitration 30 ! and before s 14 dealing ~ith notices. Mr North submits that for s 13A to have any meaning it must cover the situation which has arisen here, namely the nonpayment by the proprietor of a progress certificate. It seems that the procedure set out ins 13A has not occurred in this case and therefore,he would submit,the defendants are not liable to pay. Mr North submitted that it was a too time consuming exercise to subject the contract to the lengthy scrutiny in Chambers that would be necessary to find the true meaning of s 13A. I cannot accept this submission. Section 13A refers to "claims" not to ''disputes" which would be the situation should the proprietor refuse to pay upon a progress certificate properly authorised pursuant to the terms of the contract. G 214-Govt Printer, Qld. 3 40 50 60 -- 3 of 5 -- 10 2D 30 40 50 071191 JUDGMENT It, that is s 13A, can at least cover a claim for interest which does not f al 1 within s 10. 08 and therefore the section cannot be said to be without meaning. Miss Philipides suggeste 1 d I I that it could also cover both extensions of time and variations! 10 I to the contract. I have concluded that s 13A does not derogate from the scheme contracted for by the parties to deal with progress claims. It seems to be an instance of the maxim generalia specialibus non derogant. That being so the case falls within the authorities in this Court which have held that ina contract,such as the present,it is clear that it was the parties'intention at the time of contracting that the architect!s certificate be the warrant for payment and that such payment be made notwithstanding any argument as to the correctness of the certificate. Those cases are: Graham Allen Earthmoving Pty Ltd v. Woodwark Bay Development Corporation, unreported decision of Dowsett J 15 December 1988 (No 4304 of 1988); Thiess Constructions Pty Ltd v. Pavements and Excavations Pty Ltd, unreported decision of Williams J 2 February 1990 (No 3709 of 1989); and Macmahon Constructions Pty Ltd v. Lynch Mining Limited, unreported decision of Thomas J 27 February 1991 (No 81 of 1991). i 20 30 40 50 I Here, I i of course, there is no dispute as to entitlement to payment I which the letters being Exhibits "S" and "T" to the affidavit of Patrick Evans amply demonstrate. It should also be noted 60 --- ------------------------------ ---~ 60 G 214--Go•:t Printer, Old. 4 -- 4 of 5 -- 10 20 30 40 50 60 071191 JUDGMENT that the proposed defence tendered by Mr North does not dispute the certificates. Accordingly judgment will be given for the plaintiff against the defendants in the sum of $156,966.46. The plaintiff has abandoned its claim for interest pursuant to the contract and has sought instead interest pursuant to the Common Law Practice The provision for interest, as I have already mentioned, is set out in cl 10.08 of the contract and should the plaintiff seek recovery of interest provided for in the contract, it is necessary that a certain procedure be carried out. As I have mentioned that procedure has not occurred. That does= no~ i my opinion,preclude the plaintiff from recovering interest pursuant to .the Common Law Practi9e Act. Clause 1008. is the procedure which must occur if the higher interest rate, which is set out in the contract, is to be availed of. Accordingly it is ordered that the plaintiff recover interest on the judgment sum from 25 August 1989 to date of judgment at 12 per cent per annum pursuant to the Common Law Practice Act. Further order that the defendants pay the plaintiff's costs of and incidental to the action and to this application, to be taxed. /~ '(/- C( I G 214-Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 5 --