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Tan Lodge Pty Ltd v Melbourne Construction and Management Co Pty Ltd

 

[2002] QSC 128

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HOLMES J

No S2674 of 2002

TAN LODGE PTY LTD TRADING AS MIAMI ELECTRIC CO (ACN 054 279 560)

Applicant

and

 

MELBOURNE CONSTRUCTION AND MANAGEMENT CO PTY LTD (ACN 007 296 479)

Respondent

BRISBANE

DATE 12/04/2002

JUDGMENT

HER HONOUR: This is an application for setting aside a notice of statutory demand on the basis that there exists a genuine dispute. The dispute identified is whether the applicant debtor contracted with the creditor as principal or as disclosed agents. Mr Mudge the director of the debtor company, the sole director of the debtor company, has filed an affidavit in which he asserts that his company contracted only as agent for another company Partnering Dynamics (Moreton) Pty Ltd PDM. He says in his affidavit that he has on a number of occasions spoken to representatives of the creditor and explained that his company was the construction manager and that PDM was responsible for the payment of the debt.

He also says that in his presence a consultant has confirmed to a director of the creditor that his company was responsible for payment of the account. Unfortunately the affidavit is completely unparticularised as to dates and it really is so vaguely expressed in that way that it is impossible to make any use of that assertion in determining the basis on which the parties genuinely did contract. It is necessary therefore to look at the actual materials annexed to Mr Mudge's affidavit in an effort to endeavour whether there is any basis for saying that there is a dispute about the basis on which the contract was made.

Ms Skennar refers me to the subcontract which clearly enough on its terms is - or the substantive part of the subcontract apart from special conditions - is expressed to be between the creditor and the applicant debtor, but there is a reference to special conditions in clause 20 which say that they are an integral part of the agreement through the attachment of annexure B which must be signed and dated by both parties. Mr Green argues that that requirement for signing and dating was not met so that the special conditions did not come into application. I am not persuaded that that is a necessary construction of that term so it is appropriate in my view to look at the special conditions.

When one turns to them one finds that a construction management attachment is to form part of this agreement. It seems to me really everything turns on that construction management attachment and whether it indicates a different basis for contracting. Taken in the context of the original subcontract I do not think that there is a real basis for saying that it does. What it does is identify the existence of a head builder, a principal in that sense, but not as a principal for the purposes of the subcontract which was entered between the debtor company and the creditor Tan Lodge Proprietary Limited.

The contractual relationship is clearly set up by the subcontract as between Tan Lodge and the applicant debtor company here and the mere fact that the existence of principal builders is identified by that document does not, it seems to me, derogate from the contracting by the debtor company in its capacity as builder; the fact that it is also construction manager does not seem to me to derogate from that. In the circumstances I do not consider that the material provides an evidentiary basis for concluding that there is a genuine dispute here. Accordingly, the application to set aside the statutory demand must be dismissed.

HER HONOUR: I give leave to make that amendment and I will notate the application accordingly so that Tan Lodge is respondent and Melbourne Construction is the applicant. I will order that the applicant Melbourne Construction and Management Co Pty Ltd pay the costs of the respondent Tan Lodge Pty Ltd to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Tan Lodge Pty Ltd v Melbourne Construction and Management Co Pty Ltd

  • Shortened Case Name:

    Tan Lodge Pty Ltd v Melbourne Construction and Management Co Pty Ltd

  • MNC:

    [2002] QSC 128

  • Court:

    QSC

  • Judge(s):

    Holmes J

  • Date:

    12 Apr 2002

Litigation History

No Litigation History

Appeal Status

No Status