Court of Appeal

Gambaro Pty Ltd as Trustee for the Gambaro Holdings Trust v Rohrig (Qld) Pty Ltd; Rohrig (Qld) Pty Ltd v Gambaro Pty Ltd [2015] QCA 288 ; [2016]03 QLR (15/6414) Fraser and Morrison JJA and Boddice J 18 December 2015

Full-text: QCA15-288.pdf

Catchwords

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – OTHER MATTERS – where the contractor served a payment claim pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where the principal only paid a portion of the claim – where an adjudicator appointed under BCIPA subsequently made an adjudication decision that the amount to be paid by the principal to the contractor was greater than what had been paid – where the principal paid this amount – where the principal commenced proceedings for a declaration that it was not liable for this amount and an order for restitution of the difference – where the principal argued that because the adjudicated amount exceeded the total of the amounts assessed by the superintendent in prior progress certificates it was unjust for the contractor to retain the excess – where the object of BCIPA is to ensure that building contractors are entitled to receive and recover progress payments – where ss 99 and 100 of BCIPA prohibit the contracting out of the provisions of BCIPA – where BCIPA contemplates that a statutory payment might differ from the contractual payment – whether the object of BCIPA was exhausted upon the payment of the adjudicated amount by the principal – whether the contractor was liable to repay the adjudicated amount

Summary Notes

General Civil Appeal – Building and Construction Industry Payments – where the contractor served a payment claim pursuant to the Building and Construction Industry Payments Act 2004 (Qld) – where Gambaro commenced proceedings against Rohrig for a declaration that Gambaro was not liable to Rohrig for $913,014.23 of the amount of monies claimed by Rohrig under its payment claim, an order that Rohrig make restitution to Gambaro of that amount, and consequential orders – where Rohrig applied in the Trial Division to strike out Gambaro’s claim and its statement of claim or, in the alternative, specified paragraphs of the statement of claim – where Gambaro applied for summary judgment upon its claim with the primary judge refusing both applications – where the principal only paid a portion of the claim – where an adjudicator appointed under BCIPA subsequently made an adjudication decision that the amount to be paid by the principal to the contractor was greater than what had been paid – where the principal paid this amount – where the principal commenced proceedings for a declaration that it was not liable for this amount and an order for restitution of the difference – where the principal argued that because the adjudicated amount exceeded the total of the amounts assessed by the superintendent in prior progress certificates it was unjust for the contractor to retain the excess – where the object of BCIPA is to ensure that building contractors are entitled to receive and recover progress payments – where ss 99 and 100 of BCIPA prohibit the contracting out of the provisions of BCIPA – where BCIPA contemplates that a statutory payment might differ from the contractual payment – whether the object of BCIPA was exhausted upon the payment of the adjudicated amount by the principal – whether the contractor was liable to repay the adjudicated amount – where the mere fact that Rohrig was not contractually entitled to a progress payment on account of the contractual remuneration cannot make it unjust for it to retain the adjudicated amount of a progress payment for the same work which Gambaro had a statutory liability to pay and Rohrig had a statutory entitlement to receive on account of the contractual remuneration – where Gambaro’s pleaded claim must fail because it relies only upon contractual provisions concerning the amount of progress payments to be paid on account of the contractual remuneration which do not detract from the statutory rights and liabilities created by Pt 2 and Pt 3 of BCIPA, rather than upon contractual provisions which determine Gambaro’s liability for and Rohrig’s entitlement to the contractual remuneration on account of which the adjudicated amount of a progress payment was paid. Gambaro appeal: Dismissed with costs. Rohrig appeal: Appeal allowed. Set aside that order with costs. Gambaro’s statement of claim filed 11 September 2014 be struck out, with leave to file an amended statement of claim within 28 days of the date of this order.