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  4. Re Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd - [2024] QCA 202

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Re Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd[2024] QCA 202

Re Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd[2024] QCA 202

SUPREME COURT OF QUEENSLAND

CITATION:

RE Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd; Canadian Solar Construction (Australia) Pty Ltd v RE Oakey Pty Ltd [2024] QCA 202

PARTIES:

In Appeal No 312 of 2024:

RE OAKEY PTY LTD

ACN 160 581 626

(appellant)

v

CANADIAN SOLAR CONSTRUCTION (AUSTRALIA) PTY LTD

ACN 620 225 630

(respondent)

In Appeal No 3666 of 2024:

CANADIAN SOLAR CONSTRUCTION (AUSTRALIA) PTY LTD

ACN 620 225 630

(appellant)

v

RE OAKEY PTY LTD

ACN 160 581 626

(respondent)

FILE NO/S:

Appeal No 312 of 2024

Appeal No 3666 of 2024

SC No 11591 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2023] QSC 288 (Freeburn J); [2024] QSC 27 (Freeburn J)

DELIVERED ON:

29 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2024; 30 May 2024

JUDGES:

Bond and Boddice JJA and Wilson J

ORDERS:

In Appeal No 312 of 2024:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal.

In Appeal No 3666 of 2024:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where a representative of the respondent (in Appeal No 312 of 2024) emailed a payment claim to the appellant’s representative and various other executives for the appellant – where the email to the appellant’s representative bounced back – where it was received by the other executives – where the appellant did not respond to the payment claim with a payment schedule within the required time and thus became liable to pay the entirety of the payment claim – where the contract nominated no exclusive method of service, but prior service had been via email – whether the primary judge erred in the interpretation of contractual provisions and in finding that the relevant payment claim was given to the appellant – whether the primary judge erred in finding that the appellant did not respond to the payment claim within time – whether the primary judge erred in finding that the respondent was not estopped from asserting that the payment claim was validly given – whether the respondent’s conduct was misleading or deceptive or unconscionable conduct

APPEAL AND NEW TRIAL – APPEAL – PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TAXATION AND OTHER FORMS OF ASSESSMENT – GST CONSIDERATIONS – where the primary judge ordered that the respondent (in Appeal No 3666 of 2024) pay to the appellant the sum of $4,030,714.74 (excluding GST) – where the appellant submitted the respondent was liable to pay the GST – where the primary judge found that the order of the court “plainly” did not require the payment of GST and no such order had been sought in the proceeding – where there was no application to amend the claim, or to reopen the evidence, or to vary the orders made – whether the respondent is liable to pay GST on the judgment sum

Acts Interpretation Act 1954 (Qld), s 39
Building and Construction Industry Payments Act 2004 (Qld)
Building Industry Fairness (Security of Payment) Act 2017 (Qld), s 68, s 69, s 75, s 76, s 78, s 102

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36, cited

Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67, cited

Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265; [2014] QSC 30, cited

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

MLW Technology Pty Ltd v May [2005] VSCA 29, cited

SGR Pastoral Pty Ltd v Christensen [2019] QSC 229, cited

The Owners Strata Plan 56587 v Consolidated Quality Projects Pty Ltd [2009] NSWSC 1476, cited

The Trust Company (Australia) Ltd atf the WH Buranda Trust v Icon Co (Qld) Pty Ltd [2019] QSC 87, cited

Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8, cited

XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215, cited

COUNSEL:

In Appeal No 312 of 2024:

A C Stumer KC, with A P McKinnon, for the appellant

M Steele KC, with B A Reading, for the respondent

In Appeal No 3666 of 2024:

M Steele KC, with B A Reading, for the appellant

A C Stumer KC, with A P McKinnon, for the respondent

SOLICITORS:

In Appeal No 312 of 2024:

Thomson Geer for the appellant

Norton Rose Fulbright Australia for the respondent

In Appeal No 3666 of 2024:

Norton Rose Fulbright Australia for the appellant

Thomson Geer for the respondent

  1. [1]
    BOND JA: I have had the advantage of reading in draft the reasons for judgment of Boddice JA.  I agree with his Honour’s proposed orders and with his reasons for making those orders.  I propose only to add some further remarks explaining why I reach the same view as his Honour in relation to appeal ground 1.
  2. [2]
    Payment claim 64 was a claim for payment expressly stated to have been given pursuant to cl 39.2.  Clause 39.2 specified when the contractor might deliver a payment claim and what the payment claim must include.  It did not specify to whom the payment claim must be delivered.  However, as cl 39.3 obliged the Project Manager to assess the claim within 10 business days after service, and to issue a valuation certificate stating the amounts determined to be paid, it is appropriate to construe cl 39 as contemplating that the payment claim must be delivered to the Project Manager.
  3. [3]
    “Project Manager” is a term defined in cl 1 as having the meaning given in cl 26.1.  The Project Manager is the person who administers the Contract and exercises some or all of the Principal’s functions under the Contract: cl 26.1(a).  When the Project Manager exercises its functions, it does so as the agent of the Principal, the “its” in this contract being a reference to the Project Manager: cl 26.1(b).  At the commencement date of the Contract the Project Manager was a company named Foresight Group Australia Pty Ltd (see cl 26.1(c) and Item 1 of Annexure A), but the identity of the Project Manager could be changed by the Principal pursuant to cl 26.1(d).  Notably the Project Manager could delegate some or all of its functions by the appointment of a Project Manager’s representative: cl 26.2.
  4. [4]
    Clause 5.1 applied where a document or notice is to be given or served under or arising out of a provision of the Contract.  Clause 39 provided for a payment claim to be delivered, but the difference in the verb is irrelevant.  A payment claim is a document to be given or served pursuant to cl 39.2 and, accordingly, cl 5.1 applied to govern the manner by which a payment claim under cl 39 could be delivered to the Project Manager.  Clause 5.1(a)(i) did not apply because “the relevant clause” is a reference to cl. 39.2, and cl 39.2 did not specify a manner by which the payment claim could be delivered to the Project Manager.  The result was that cl 5.1(a)(ii) and (iii) applied.  The options were:
    1. delivery by hand to the relevant address stated in Annexure A or last notified in writing to the party giving the notice;
    2. delivery by prepaid post to the relevant address stated in Annexure A or last notified in writing to the party giving the notice;
    3. except where the notice is being given under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act)[1], delivery by electronic mail to the relevant address stated in Annexure A or last notified in writing to the party giving the notice.[2]
  5. [5]
    Payment claim 64 was explicitly both a document delivered pursuant to cl 39.2 and a payment claim under the BIF Act.  Accordingly, it fell within the exception referred to in the third option mentioned in the previous paragraph.  At first blush, cl 5.1(ii) would seems to reveal the contractual intention that payment claims under the BIF Act could not be sent by electronic mail.  To my mind, however, that contractual intention must be regarded as negated by cl 5.3.  Clause 5.3 was a facultative clause expressing a specific agreement of the parties referable to delivery of claims under the BIF Act.  When read with Item 21 of Annexure A, cl 5.3 plainly contemplated that claims under the BIF Act were to be sent to an email address.  As the contract was entered into, the email address was the email address of the natural person who was the contact for the Project Manager.  Accordingly, it would be wrong to conclude that payment claims could not be delivered by email.  Under the contract the better view was that payment claims could be sent by email to the address notified by Item 21 of Annexure A.  Further, the Principal was enabled to notify to the Contractor another address for the purposes of the clause.
  6. [6]
    Construing the clause in that way is also consistent with the relevant operation of the BIF Act.  Section 75 of the BIF Act requires payment claims to be given to the person liable to make the payment under the contract.  In this case that is the Principal.  Section 102 of the BIF Act deals with service and is facultative in nature.  Section 102(1) permits claims to be given to the Principal in the way provided for in the contract, which, as I have said, revealed that they may be sent by email.  But s 102(1) revealed that the contractually mandated way could not be regarded as exclusive, even if the contract had suggested that it should be.  Service in a manner compliant with s 39 of the Acts Interpretation Act 1954 (Qld) would be acceptable.  Having regard to SGR Pastoral Pty Ltd v Christensen [2019] QSC 229 if the Principal consented to the sending of payment claims by email to a particular address, whether or not so specified in the construction contract, service of the document would occur consistently with s 39 when the email was sent to the email address consented to, capable of retrieval.
  7. [7]
    Whilst it is plain that the Principal consented to service of the payment claims by email at the address referred to in Item 21 of Annexure A, that was not the only mechanism by which the Principal conveyed to the Contractor as to how service could validly take place.  The better view of the contract is that by cl 26, the Principal consented to the Project Manager administering the contract, including by delegating functions to a representative.  When exercising functions, the Project Manager acted as agent of the Principal.  So when the Project Manager communicated consent to emails being sent to a particular address that was to be regarded as consent which bound the Principal.
  8. [8]
    In this case, as the primary judge found, payment claim 64 was sent by email to the Project Manager’s representative.  That was sufficient.  It may also be that, contrary to the primary judge’s view, it was to be regarded as sent to Mr Wang, who was also the Principal’s representative for the purposes of receiving payment claims, when it was sent to an email address which had not to the Contractor’s knowledge been cancelled.  The primary judge reached the opposite conclusion based on following the decision of McMurdo J in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2014] QSC 30, but I prefer the reasoning of Bowskill J (as the Chief Justice then was) in SGR Pastoral Pty Ltd v Christensen [2019] QSC 229.
  9. [9]
    The foregoing reasoning is sufficient to dispose of appeal ground 1.
  10. [10]
    BODDICE JA:  On 15 December 2023, the primary judge ordered, pursuant to s 78(2)(a) of the Building Industry Fairness (Security of Payment) Act 2017 (the Act), that the appellant pay to the respondent the sum of $4,030,714.74 (excluding GST), together with interest on that sum.
  11. [11]
    The appellant appeals those orders.[3]  At issue, is whether the primary judge erred: in the interpretation of contractual provisions and in finding that the relevant payment claim was given to the appellant (ground 1); in finding that the appellant did not respond to the payment claim within time (ground 2); in finding that the respondent was not estopped from asserting that the payment claim was validly given (ground 3); and in finding that the respondent’s conduct was not misleading or deceptive (ground 4) or unconscionable conduct (ground 5).
  12. [12]
    The respondent also appeals those orders.[4]  At issue, is whether the primary judge erred in concluding that the claimed amount did not include GST.

Background

  1. [13]
    The appellant is the principal under a contract dated 22 December 2017, for the design and construction of a solar farm project.  The respondent is the contractor under that contract.
  2. [14]
    Prior to 26 June 2023, the respondent had given to the appellant over 60 payment claims for works performed under the contract.
  3. [15]
    On 26 June 2023, the respondent’s representative, Joseph Ruttledge, sent a further payment claim, “PC64”, by email addressed to “Stanley Wang”, the relevant person who had been issuing valuation certificates under the contract for the previous three years.  The email was copied to six other named executives, three being representatives of the project manager, designated under the contract and three being representatives of the manager, designated under the contract.
  4. [16]
    It was not in dispute, at trial, that the email sent to Mr Wang was not received by him; that the email was sent and bounced back; that a bounce back email was sent to Mr Ruttledge; that all other recipients did receive the email; and that Mr Wang was unaware of the email having been sent until 14 July 2023 and, accordingly, was unaware of PC64.
  5. [17]
    It was also accepted at trial that Mr Ruttledge did not see the bounce back email and only became aware that Mr Wang had not received the email on 14 July 2020, when Mr Wang asked for a copy of PC64.
  6. [18]
    On the morning of 14 July 2023, after receiving the copy of PC64, Mr Wang sent Mr Ruttledge an email in the following terms:

“Hi Joe

The payment claim of Monday, June 26, 2023 5:10 PM was sent to my EU email address which was cancelled and which you know about – so this is the first time I’m receiving this chain of emails intentionally sending payment claim documentation and purported invoices to an email which you know is not operative, is in bad faith and misleading and deceptive, and frankly is a new low in what we are seeing on Oakey 2 – RE Oakey reserve all rights in relation to this conduct.

As for this invoice, this is not valid and I suggest you retract”

  1. [19]
    After receiving that email, Mr Ruttledge sent an email to various representatives of the respondent in the following terms:

“Hi all,

After providing the invoice and cover letter to Stanley, I received the attached ‘Email Delivery Failure’.  To confirm receipt by Stanley, I followed up with a subsequent email below, and his response is directly below this email.  Stanley is questioning the validity of how the Payment Claim was served.

A few points:

  • We served Payment Claims to Stanley using his EU email address for over 24 months and he has always responded.
  • We did not receive an ‘Email Delivery Failure’ when we issued Payment Claim no. 64.
  • Stanley had an issue with his EU email on 1 June 2023 and he sent the attached email and text message.
  • We Stanley first became involved, on 2 November 2018, REO provided the attached Notice for a Change in details which nominates his .COM email address.
  • I am currently going through emails to identify the first instance of Stanley’s EU email address and will update you asap. I can see that Stanley’s EU email address has been used by him, Aurecon and other exclusively for the majority of the project and it is only recently that his .COM email has reappeared.”
  1. [20]
    On the afternoon of 14 July 2023, Mr Ruttledge sent Mr Wang, other recipients of the email annexing PC64, and some representatives of the respondent this email:

“Hi Stanley,

CS has only been made aware via your email on 14 July 2023 that your EU email address has been ‘cancelled’.  There has not been any prior communication to this effect.  CS notes that you have received and replied to all previous Payment Claims served to this email address and no bounce-back was received in respect of those previous Payment Claims nor the June payment claim.  On both occasions that CS was made aware of technical issues with your email address (1 June 2023 and today, 14 July 2023) we have followed up with you promptly and directly to ensure the issue has not prevented RE Oakey from receiving communication.

CS further notes that Mark Griffith of Aurecon who has been authorised to exercise the functions of the Project Manager under the Contract and Tully Robertson, authorised as the Senior Representative for RE Oakey, received Payment Claim no.64.  All CS Payment Claims served to RE Oakey are available via the project EDMS (refer screenshot below and the link that is provided via email with each Payment Claim to which you have been responding for over 36 months).  This creates a clear course of conduct between CS and RE Oakey to send and receive payment claims in this manner.

CS rejects and takes offence at the allegations of bad faith, misleading, and deceptive actions on our part and we demand that you retract these allegations immediately, unreservedly, and as is clearly appropriate for the Project Manager.

If RE Oakey had ongoing issues with its email accounts, it should have made this clear, particularly in cases where RE Oakey has been exclusively using the EU email address as your communication stream for the majority of the project (noting this email address was introduced to CS by Gabriele Mallarini of RE Oakey in 2019).  RE Oakey is responsible for ensuring it can receive communications to email accounts that have been introduced by RE Oakey and used for correspondence, including issuance of formal correspondence by RE Oakey under the Contract as is the case with your EU email account.

CS confirms that its invoice is valid and we expect payment to be made in accordance with the BIF Act (i.e. no later than today, 14 July 2023).  CS reserves it rights to take action if RE Oakey fails to comply with its obligations.”

  1. [21]
    A response to PC64 was sent by Mr Wang later that same day, 14 July 2023, being the fifteenth business day after the email was sent on 26 June 2023.

Primary judge’s decision

  1. [22]
    The primary judge identified the issues in dispute as: was PC64 “given” to the appellant?; did the appellant respond to PC64 within time?; is the respondent estopped from asserting that PC64 was validly given?; was the respondent’s conduct and in particular, the failure to respond to the bounce back, misleading or deceptive; and was the respondent’s conduct unconscionable?
  2. [23]
    The primary judge found that although the 26 June email addressed to Mr Wang was never received by Mr Wang, PC64 was “given” to the appellant as the contract appointed the project manager as the appellant’s agent in the exercise of all of its functions under the contract and the email enclosing PC64 was sent to the project manager’s representatives.  In doing so, the primary judge held that a proper interpretation of the contract supported a conclusion that there was no requirement, under the contract, for a payment claim to be served in a specified way.
  3. [24]
    The primary judge found that having been given PC64, the appellant failed to give a payment schedule within the specified time period, under the contract, so that the amount of the payment claimed became payable.
  4. [25]
    The primary judge found that the appellant’s contention that the appellant and the respondent had adopted a common assumption that a payment claim could not be given to the appellant by email under the contract, unless delivered by email to Mr Wang, was not established on the evidence.  Accordingly, the respondent was not estopped from asserting that PC64 was validly given to the appellant.
  5. [26]
    The primary judge found that the appellant’s contention that the respondent’s conduct, in enclosing PC64 with the email which bounced back and in not following up and checking for a bounce back email, represented to each of the other recipients that the email had been delivered by email to Mr Wang, was not established on the evidence.  The mere appearance of names within the “To” and “cc” fields of an email did not represent that the email had in fact been delivered to those listed names.  Accordingly, the appellant failed to establish any misleading or deceptive conduct.
  6. [27]
    Finally, the primary judge found that the circumstances in which the respondent’s representative came to send the 26 June email to Mr Wang and to the other recipients, was not conduct to be denounced as offensive to conscience and was not otherwise dishonest or trickery or sharp practice, such as to found unconscionability under s 21 of the Australian Consumer Law (ACL).

Contractual provisions

  1. [28]
    Relevantly, the contract provided:
  1. “5.
    Notices
  1. 5.1
    Mode of service
  1. Any document or notice to be given or served under or arising out of a provision of the Contract must be written in English and delivered:
  1. in the manner expressly provided for in the relevant clause; or
  1. where no such specific manner is required, then by hand, prepaid post, or, except where the notice is being given under the SOP Act, electronic mail, to the relevant address stated in Annexure A or last notified in writing to the party giving the notice; and
  1. if required pursuant to clause 6.1, via the EDMS.
  1. In the case of a Key Notice, in addition to provision in the manner required under clause 5.1(a), a copy must be sent to the email address stated in Item 20 of Annexure A.
  1. Communications made in reliance upon a Legislative Requirement may be made in the manner, if any, which is permitted by that Legislative Requirement.
  1. 5.2
    Timing of service
  1. A document or notice delivered or sent in accordance with clause 5.1 will be deemed to have been given and received:
  1. if delivered by hand, on the day of delivery;
  1. if delivered by prepaid post, on the fifth day after posting;
  1. if sent by electronic mail, on the first to occur of:
  1. (A)
    receipt by the sender of an email acknowledgment from the recipient’s information system showing that the notice has been delivered to the recipient’s email address;
  1. (B)
    the time that the notice enters an information system which is under the control of the recipient; and
  1. (C)
    the time that the notice is first opened or read by an employee or officer of the recipient;
  1. if delivered through the EDMS then, when
  1. (A)
    the communication has been uploaded on the EDMS by the party making the communication; and
  1. (B)
    the party making the communication has sent an email to the other party notifying it that the communication has been uploaded onto the EDMS.

but if the delivery or receipt is on a day which is not a Business Day or is after 5:00pm (intended recipient’s time) it is deemed to have been delivered or received (as the case may be) at 9:00am on the next Business Day.

  1. 5.3
    SOP Act Claims

The parties agree that, in the case of the Principal the ordinary place of business for the purposes of the SOP Act is the office of the Principal being at the address indicated in Item 21 of Annexure A, or such other address as the Principal may notify to the Contractor in writing for the purposes of this clause.

  1. 5.4
    Change of details

The Principal and the Contractor must each notify the other of a change of address or other details relevant to the giving of notices under the Contract.

…

  1. 26.
    Project Manager
  1. 26.1
    Project Manager
  1. The Principal shall appoint a project manager (the Project Manager) who shall:
  1. administer the Contract; and
  1. exercise some or all of the functions of the Principal under the Contract.
  1. The Project Manager shall act as the agent of the Principal in the exercise of all of its functions under this Contract.
  1. The Project Manager as at the Commencement Date is the person named as such in Item 1 of Annexure A.
  1. The Principal  may revoke the appointment of the Project Manager and appoint a substitute person as the Project Manager.  The appointment of the Project Manager will not prevent the Principal from taking a step as contemplated by clause 26.1(e).
  1. Where the Contract permits or requires the Project Manager to take a step then the Principal may take that step in place of the Project Manager.
  1. The Contractor acknowledges that the Project Manager may be an employee of the Principal or may have a general commercial relationship with the Principal beyond the performance of the role of Project Manager under this Contract.  The Contractor shall not bring any claim against the Principal by reason of the relationship between the Principal and the Project Manager.
  1. In the exercise of its functions under clauses 37.4 and 39 of the Contract, the Project Manager may have regard to, but must not rely on, any view expressed or assessment by any Independent Certifier.
  1. 26.2
    Project Manager’s Representative
  1. The Project Manager may appoint one or more representatives to exercise some or all of the functions of the Project Manager under the Contract and the Project Manager may revoke the appointment of a representative, in each case notifying the Contractor of such appointment and/or revocation.  The appointment of a representative will not prevent the Project Manager from exercising any function.
  1. Any action by the Project Manager's representative, in relation to a function delegated to it, will be taken to be an action of the Project Manager.

…

  1. 39.
    Payment
  1. 39.1
    Quantities and price breakdown

Any breakdown of the Contract Sum is not to be treated as an indication of the scope of Work or the quantity of work required to execute and complete the Work, even if they purport to do so.

  1. 39.2
    Payment claims
  1. The Contractor may deliver a payment claim at the following times:
  1. in respect of any claim for payment for a milestone or submilestone listed in Annexure C, at the times specified in Item 41 of Annexure A; and
  1. in respect of any other amount to which the Contractor claims an entitlement to be paid under the Contract up to and including the 25th day of the relevant month, the 25th day of the relevant month.
  1. A payment claim must include:
  1. the milestone or submilestone listed in Annexure C which has been reached;
  1. the milestone value for the milestone or submilestone listed in Annexure C carried out in accordance with the Contract up to the date of the payment claim;
  1. evidence of the amount claimed to be due to the Contractor less any amounts due and payable by the Contractor to the Principal;
  1. a statutory declaration in the form at Annexure I; and
  1. such further information as the Principal reasonably requires in respect of the work the subject of the payment claim.
  1. A payment claim which does not comply with the requirements of clause 39.2(b) or which is delivered earlier than is permitted by clause 39.2(a) is invalid.  An invalid payment claim must be resubmitted, in a valid form, at the next occasion that a payment claim can be submitted under clause 39.2(a).
  1. In respect of any claim for payment made under this clause 39.2 in connection with a milestone listed in Annexure C, the Contractor shall not be entitled to be paid any amount for that milestone which exceeds the value of the milestone as indicated in Annexure C.
  1. 39.3
    Valuation certificate
  1. Within 10 Business Days after the service of a valid payment claim the Project Manager must:
  1. assess the claim;
  1. in assessing the claim determine:
  1. (A)
    the milestone(s) listed in Annexure C which have been achieved by the Contractor:
  1. (B)
    the milestone value for the milestone listed in Annexure C carried out by the Contractor (including any Variation) in the performance of the Contract to the date of the claim;
  1. (C)
    amounts due from the Contractor to the Principal;
  1. (D)
    amounts for which the Principal is entitled to Liquidated Damages under clause 35;
  1. (E)
    amounts previously paid under the Contract;
  1. (F)
    amounts previously deducted for retention monies; and
  1. (G)
    retention monies to be deducted; and
  1. issue to the Contractor a valuation certificate identifying the payment claim to which it relates and stating the amounts determined as required by clause 39.3(a)(ii) and, having regard to those amounts, the amount of the payment which, in the opinion of the Project Manager, is to be made by the Principal to the Contractor or by the Contractor to the Principal.
  1. The Project Manager must set out, in any valuation certificate, the calculations employed to arrive at the amount and, if the amount is more or less than the amount claimed by the Contractor, the reasons for the difference.
  1. 39.4
    Tax invoice
  1. If the valuation certificate provides for an amount to be paid by the Principal to the Contractor, the Contractor must following the issue of a valuation certificate under clause 39.3(a)(iii) deliver a tax invoice to the Project Manager.
  1. The tax invoice must be in the sum of the valuation certificate.
  1. A tax invoice which is not in the sum of the valuation certificate issued by the Project Manager under clause 39.3(a)(iii), which is delivered prior to the period nominated in clause 39.4(a) is invalid.
  1. The Contractor does not, by the submission of a tax invoice in the amount of the valuation certificate (which amount may be different to the amount claimed by the Contractor in the payment claim) waive any right to persist with a claim to be entitled to the amounts claimed in the payment claim.
  1. For the purposes of the SOP Act, the reference date, within the meaning of the SOP Act, is the date upon which a payment claim may be submitted under clause 39.2(a)
  1. 39.5
    Payment
  1. If a valuation certificate shows an amount as being due for payment to the Contractor by the Principal then, subject to clauses 39.7 and 51.1(e), the Principal must pay that amount at the expiration of the period specified in Item 42 of Annexure A.
  1. If a valuation certificate shows an amount as being due for payment by the Contractor to the Principal, that amount is a debt due from the Contractor to the Principal and the Contractor must pay to the Principal that amount within 15 days of the delivery of the valuation certificate.”

Legislative regime

  1. [29]
    Relevantly, the Act[5] provides:
  1. “68
    Meaning of payment claim
  1. A payment claim, for a progress payment, is a written document that—
  1. identifies the construction work or related goods and services to which the progress payment relates; and
  1. states the amount (the claimed amount) of the progress payment that the claimant claims is payable by the respondent; and
  1. requests payment of the claimed amount; and
  1. includes the other information prescribed by regulation.
  1. The amount claimed in the payment claim may include an amount that—
  1. the respondent is liable to pay the claimant under section 98(3); or
  1. is held under the construction contract by the respondent and that the claimant claims is due for release.
  1. A written document bearing the word ‘invoice’ is taken to satisfy subsection (1)(c).

…

  1. 75
    Making payment claim
  1. A person (the claimant) who is, or who claims to be, entitled to a progress payment may give a payment claim to the person (the respondent) who, under the relevant construction contract, is or may be liable to make the payment.
  1. Unless the payment claim relates to a final payment, the claim must be given before the end of whichever of the following periods is the longest—
  1. the period, if any, worked out under the construction contract;
  1. the period of 6 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied.
  1. If the payment claim relates to a final payment, the claim must be given before the end of whichever of the following periods is the longest—
  1. the period, if any, worked out under the relevant construction contract;
  1. 28 days after the end of the last defects liability period for the construction contract;
  1. 6 months after the completion of all construction work to be carried out under the construction contract;
  1. 6 months after the complete supply of related goods and services to be supplied under the construction contract.
  1. The claimant can not make more than 1 payment claim for each reference date under the construction contract.
  1. A payment claim may include an amount that was included in a previous payment claim.
  1. Subsection (7) applies if—
  1. there is a subcontract under the construction contract for the progress payment; and
  1. the construction contract is not also a subcontract for another construction contract.
  1. The claimant must ensure the payment claim is accompanied with a supporting statement.

Maximum penalty—100 penalty units.

  1. A failure of the claimant to comply with subsection (7) does not affect the validity of a payment claim.
  1. In this section—

final payment means a progress payment that is the final payment for construction work carried out, or for related goods and services supplied, under a construction contract.

supporting statement, for a payment claim, means a written document—

  1. declaring that all subcontractors have been paid all amounts owed to them by the claimant at the date of the payment claim; or
  1. stating—
  1. the following for each subcontractor who has not been paid the full amount owed to them by the claimant at the date of the payment claim—
  1. (A)
    the subcontractor’s name;
  1. (B)
    the amount still unpaid;
  1. (C)
    the details of the unpaid payment claim for the subcontractor;
  1. (D)
    the date the subcontractor carried out the construction work or supplied the related goods and services;
  1. (E)
    the reasons the amount was not paid in full; and
  1. that all other subcontractors have been paid the full amount owed to them by the claimant.
  1. 76
    Responding to payment claim
  1. If given a payment claim, a respondent must respond to the payment claim by giving the claimant a payment schedule within whichever of the following periods ends first—
  1. the period, if any, within which the respondent must give the payment schedule under the relevant construction contract;
  1. 15 business days after the payment claim is given to the respondent.

Maximum penalty—100 penalty units.

Note—

A failure to give a payment schedule as required under this section is also grounds for taking disciplinary action under the Queensland Building and Construction Commission Act 1991.

  1. However, the respondent is not required to give the claimant the payment schedule if the amount claimed in the payment claim is paid in full on or before the due date for the progress payment to which the payment claim relates.
  1. If the respondent gives the claimant a payment schedule, the respondent must pay the claimant the amount proposed in the payment schedule no later than the due date for the progress payment to which the payment schedule relates.

Maximum penalty—100 penalty units.

  1. Subsection (3) does not apply to an amount to the extent the respondent is required to retain the amount under chapter 3, part 4A.”

Appellant’s appeal

Ground 1

  1. [30]
    The appellant submits that the primary judge erred in holding that the contract did not require payment claims to be sent in a specified way, and in finding that the other recipients of the email enclosing PC64 had authority to receive or accept payment claims on behalf of the appellant.
  2. [31]
    Central to the appellant’s contentions as to a specified method for sending payment claims is the proper construction of the contract.  In undertaking that task, regard can be had to the contractual headings.[6]
  3. [32]
    The words used in the contract are to be given their natural and ordinary meaning, consistent with the context in which they appear in the contract, taking into account its contents as a whole.[7]  Their interpretation must be consistent with an interpretation of the contract as a whole, having regard to the purpose or objects of the clauses.[8]  Regard is also to be had to the commercial purpose of the contract and the fact that the parties have entered into that contract, with an awareness of the relevant provisions of the Act in respect of payment claims.[9]
  4. [33]
    Finally, the words in the contract are to be interpreted in a way that gives them effect, rather than redundancy[10] and so as to avoid making commercial nonsense or working commercial inconvenience.[11]
  5. [34]
    Adopting those principles to the interpretation of this contract, the following factors are relevant.
  6. [35]
    First, the contract is for the design and construction of a particular project entered into by a special purpose vehicle with no employees of its own.  As such, Annexure A contains specified information, including the name and address of the project manager who, by cl 26, is appointed by the principal to administer the contract.  In so doing, the project manager exercises some or all of the functions of the principal under the contract and in exercising all of those functions, acts as the agent of the principal.  Further, by cl 26.2, the project manager may appoint one or more representatives to exercise some or all of the functions of the project manager.
  7. [36]
    Second, the contract was entered into knowing that it operated under a legislative regime which provided for the giving of payment claims and a process for responding thereto in a specified way and time period.
  8. [37]
    Against that background, the proper interpretation of cl 5.1, in the context of the provisions of the contract as a whole, supports a conclusion that there was no error on the part of the trial judge in finding that cl 5.3 does not provide an express mode of service for the purposes of the operation of cl 5.1(a)(i) of the contract.
  9. [38]
    Whilst cl 5 is headed “Notices” and cl 5.1 is headed “Mode of service”, a consideration of cl 5, in the context of the contract as a whole, supports a conclusion that the terms of cl 5.1(a)(i) are not engaged, as no manner of service is expressly provided for in a relevant clause, in respect of payment claims.
  10. [39]
    Whilst cl 5.3 is headed “SOP Act Claims”, cl 5.3, by its terms, records the agreement of the parties as to the ordinary place of business of the principal, for the purposes of the SOP Act.  Nothing in that clause specifies an express manner of service of notices or evidences any intention to specify an express manner of service of SOP Act claims.
  11. [40]
    This is particularly so when regard is had to the terms of cl 39.2 of the contract.  It is headed “Payment claims” and specifically provides for delivery of a payment claim.  A consideration of the terms of cl 39.2 supports a conclusion that the payment claim therein referred to, is a payment claim within the meaning of the Act.
  12. [41]
    The appellant submitted that this interpretation does not give any effect to cl 5.3 which, it is submitted, provides for the specification of an email address as that place of business, consistent with cl 5.3 permitting service of notices or other documents on the principal.  On that construction, it is submitted, cl 5.3 requires effective service to be at that email address and, as such, is a specified mode of service within the meaning of cl 5.3(a)(i) of the contract.
  13. [42]
    However, if that was the true purpose and effect of cl 5.3, no such intention is to be discerned from the ordinary meaning of that clause, either in the context of cl 5, read with its other parts, or read in the context of the contract as a whole.  Nothing in those provisions supports a conclusion that cl 5.3 was specifying a requirement for valid service of SOP Act claims.
  14. [43]
    This conclusion is supported by the fact that the SOP Act and its successor, the Act, provides for the giving of various notices and claims.  The reference to notices under the SOP Act in cl 5.1(a)(ii) and the heading “SOP Act Claims” in cl 5.3 can be given effect in that they relate generally to notices and claims under the SOP Act, with payment claims dealt with separately under cl 39.2 of the contract.
  15. [44]
    The appellant submitted that such an interpretation was inconsistent with the language in Item 21 of Annexure A, and the inclusion of a process for altering the address to “such other address as the Principal may notify to the contractor in writing for the purposes of this clause”.  It was submitted that such notice had been given by the principal’s representative on 18 November 2018, when a communication was sent providing a new address, namely, Mr Wang’s email address.
  16. [45]
    A consideration of the terms of the communication of 18 November 2018, does not support that submission.  That communication was sent following receipt from the project manager’s representative of a change in details of the contractor’s representative in Item 21 of Annexure A.  Importantly, the letter of 18 November 2018 was signed by Peter Lord as “Principal’s representative” and specified that there was a change “to the Principal’s Representative and contact details for notices”, concluding that further communications under the contract were to be directed to the new representative using those contact details.  Nothing in that communication supports a conclusion that that letter was purporting to be a notification for the purposes of cl 5.3.  The reference to communications is consistent with this notification being far more general than being a communication for the purposes solely of cl 5.3 of the contract.
  17. [46]
    Such a conclusion is consistent with a consideration of the various forms of communication matrices agreed to by the parties.  The frequency of changes within those matrices and their inconsistencies, support the primary judge’s conclusion that those matrices were an unsafe foundation for a finding that the parties were limited to communicating notices in accordance with their contents.
  18. [47]
    It was submitted by the appellant, in the event that its primary argument as to the proper interpretation of the contract providing for a specified manner of service of payment claims, that cl 5.1(a)(ii)–(iii) required that a payment claim be served by hand or prepaid post or via an electronic document management system.
  19. [48]
    That submission does not, however, recognise that cl 5.1(a)(ii) is facultative.  It provides that when a specific manner of service is expressly provided for, any document or notice may be given or served “by hand, prepaid post, or except where the notice is being given under the SOP Act, electronic mail, to the relevant address stated in Annexure A or last notified in writing to the party giving the notice”.  Such a provision does not prescribe that the giving or service of notice or documents must be effected in that method.  Importantly, it does not provide that any other method of giving or service will be ineffective.[12]
  20. [49]
    In a commercial context, absent such a provision, a document is properly to be taken to have been given if it has actually been received and come to the attention of a person with authority to deal with that document under the contract.[13]
  21. [50]
    As Hodgson JA observed in Falgat Constructions Pty Ltd v Equity Australia Corporation Ltd:[14]

“… if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with.  In such a case, there has been service, provision and receipt.” (citations omitted)

  1. [51]
    The evidence established that at least one of the “cc” recipients of the email attaching PC64, Mr Griffith, was nominated as a project manager representative by Peter Lord, as project manager, by letter dated 19 January 2018.  Clause 26.1 provided that the project manager may appoint one or more representatives to exercise the functions of the project manager under the contract.  Further, the project manager acted as agent for the principal in the exercise of its functions under the contract.
  2. [52]
    It was submitted by the appellant that Mr Griffith’s nomination was superseded by the contents of an email dated 6 December 2018, from a representative of Aurecon, advising of primary points of contact changes for key items.  However, the primary judge was correct in finding that Mr Griffith’s nomination had not been revoked at any time.
  3. [53]
    First, the nomination on 19 January 2018, was specifically said to be made “in accordance with clause 26.2 of the Contract” and stated that the nominated representatives, one of whom was Mark Griffith, were “Project Manager’s Representatives to exercise the functions of the Project Manager”.  Nothing in the email of 6 December 2018, suggested that it was a revocation of such a formal notification or, indeed, that the notification was made in accordance with cl 26.2 of the contract.
  4. [54]
    Second, the accompanying communications matrix to the email of 6 December 2018, did not purport to be a notification offering the nominations pursuant to cl 26.2 of the contract.
  5. [55]
    There was also no error in the primary judge’s conclusion that PC64 was given to the appellant.

Ground 2

  1. [56]
    The appellant submits that the primary judge erred in finding that it failed to respond to the payment claim within the required timeframe, as on its proper construction, the contract did not provide a period within which it was required to give a payment schedule and, accordingly, a period of 15 business days, as prescribed by s 76(1)(b) of the Act, was the applicable timeframe and its payment schedule was served within 15 business days.
  2. [57]
    Central to the appellant’s contention in respect of this ground, is a contention that cl 39.3 did not refer to a “payment schedule” and therefore the contract did not provide a time for giving a “payment schedule” under the Act.
  3. [58]
    A proper interpretation of the contract does not support the appellant’s contentions.  Whilst cl 39.3 of the contract provides for the issuing, in response to a payment claim given pursuant to cl 39.2, of a “valuation certificate”, the terms of the clause require the project manager to assess the payment claim and to issue a valuation certificate identifying the relevant payment claim, the amounts determined as owing and the amount of the payment which, in the opinion of the project manager, is to be made.
  4. [59]
    As the primary judge observed, whilst the requirements of the valuation certificate are more detailed, than the requirements of s 69 of the Act, the “valuation certificate” necessarily meets the three requirements of s 69, namely, identification of the payment claim to which it relates, stating the amount proposed to be paid and stating the reasons for any shortfall.  There was no error in the primary judge’s conclusion that the valuation certificate was, in substance, a payment schedule.
  5. [60]
    Once that conclusion is reached, cl 39.3 does specify “the period, if any, within which the respondent must give the payment schedule under the relevant construction contract”, within the meaning of s 76(1)(a) of the Act.  That being so, the period of 15 business days, specified in s 76(1)(b) of the Act, had no application.
  6. [61]
    The appellant submitted that this interpretation of cl 39.3 did not give proper regard for the necessity that any contractual regime for the giving of payment claims, comply with the requirements of the Act.  However, whilst there may be instances in which the payment schedule regime under a construction contract does not meet the requirements of the payment schedule regime under the Act, this contract is not such a case.

Ground 3

  1. [62]
    The appellant contends that the primary judge erred in finding that the respondent was not estopped from asserting that PC64 was given to the appellant, because the evidence supported a finding that the parties had adopted a common assumption that a payment claim could not be given to the appellant, unless it was delivered by email to Mr Wang.
  2. [63]
    The primary judge’s finding that it was not established that both parties had adopted such an assumption, was a finding of fact.  As such, it is not to be set aside by an appellate court, unless it is established that it was glaringly improbable or contrary to the evidence.[15]
  3. [64]
    Central to the primary judge’s finding, was an acceptance of Mr Ruttledge’s evidence that he did not act under such an assumption.  Instead, he assumed that all of the recipients of the email would consider, or at least discuss, the payment claim.
  4. [65]
    A consideration of the evidence supports a conclusion that it was open to the primary judge to accept Mr Ruttledge’s evidence in respect of this issue and, further, that the acceptance of that evidence was consistent with the weight of the evidence.
  5. [66]
    First, not one of the previous payment claims was only sent to Mr Wang.  Whilst the recipients of payment claims varied over time, each payment claim was sent to multiple recipients.
  6. [67]
    Second, there was evidence that the recipients of a payment claim were people on the project who, at the relevant time, had a responsibility in considering aspects of the payment claims.  Accordingly, the “cc” field was not a mere formality.
  7. [68]
    Third, Mr Ruttledge’s evidence was not materially shaken in cross-examination and was consistent with the evidence the other recipients, had an involvement in advising on aspects of the payment claims.
  8. [69]
    The appellant submits that the primary judge asked the wrong question, in focussing on whether Mr Wang was the only person to whom emails had been sent attaching payment claims.  It was submitted that the proper question was to ask whether any of the payment claims in the relevant period had been sent to others, to the exclusion of Mr Wang.
  9. [70]
    However, framing the question in that way fails to recognise that PC64 was not sent to the exclusion of Mr Wang.  The normal course was followed.  Unfortunately, Mr Wang’s email address was not operative at the time.
  10. [71]
    The appellant further submits that the primary judge erred in not finding that the course of dealing supported the inference that the respondent did adopt the relevant assumption, as the proper inference from the evidence was that it did so.
  11. [72]
    In making this submission, the appellant relied not only on the fact that every payment claim, since 11 January 2019, had been delivered to Mr Wang’s email address and, further, that Mr Wang was the only person who had responded with a valuation certificate.  The appellant also relied on Mr Ruttledge’s response to the bounce back email when it came to his attention, which was to forward it immediately to Mr Wang and to ask for confirmation of its receipt.  The appellant submits that Mr Ruttledge’s position changed only after consulting lawyers on 14 July 2023.
  12. [73]
    However, a consideration of the evidence as a whole does not support a conclusion that the proper inference to be drawn from the evidence, was that the respondent had adopted such an assumption.
  13. [74]
    Mr Ruttledge’s initial response was consistent with addressing Mr Wang’s concern that he had not received the payment claim.  Once Mr Wang sent an email containing a specific assertion by Mr Wang that the respondent had acted intentionally and in bad faith, Mr Ruttledge sent an internal email addressing Mr Wang’s assertions of bad faith.
  14. [75]
    That internal email addressed Mr Wang’s allegations of intentionally selecting an inoperative email.  It did not contain any inconsistency with Mr Ruttledge’s later contentions that PC64 had been received by the project manager’s representatives, in accordance with “a clear course of conduct” between the parties to send and receive payment claims in that manner.
  15. [76]
    Once it is accepted that the primary judge’s finding in respect of this aspect of the appellant’s claim was open and consistent with the evidence, there is no basis for this Court to interfere in respect of that finding.

Ground 4

  1. [77]
    The appellant submits that the primary judge erred in concluding that the respondent’s conduct was not misleading or deceptive, or likely to mislead or deceive under s 18 of the ACL, as the appearance of names within a “To” and “cc” field of an email represented that the email had in fact been delivered to the listed names.  It is submitted that such a conclusion followed from the parties’ dealings in respect of every payment claim since 11 January 2019, and by the respondent’s failure to ask any of the copied recipients whether Mr Wang had received PC64, or by staying silent about the receipt of the bounce back email, or by failing to check whether it had been received by Mr Wang.
  2. [78]
    The primary judge’s finding in respect of this aspect of the appellant’s claim rested on an acceptance of a submission that the “mere appearance of names within the ‘to’ and ‘cc’ fields of an email does not represent that the email has in fact been delivered to each of the names listed.”
  3. [79]
    No error has been demonstrated in the acceptance of that submission.  Nothing in the content of the email attaching PC64, supported a contention that the mere sending of the email represents that each of the recipients has in fact received that email.
  4. [80]
    Further, it was not the appellant’s case at trial that the respondent knew that it had received a bounce back email and had deliberately remained silent about it.  Whilst that was a pleaded contention in paragraph 59A of the amended defence, the cross-examination of the respondent’s representatives and, in particular, of Mr Ruttledge, contained no such assertion.
  5. [81]
    In those circumstances it would be unfair to allow the respondent to seek to assert such a contention on appeal.  In any event, there would be no basis to accept it in light of Mr Ruttledge’s evidence and the acceptance of that evidence by the primary judge.

Ground 5

  1. [82]
    The appellant submits that the primary judge erred in finding that the respondent’s conduct was not unconscionable under s 21 of the ACL, as the respondent’s conduct reached the threshold of unconscionable conduct in failing to take steps to inquire of any one as to whether PC64 had been received by Mr Wang, despite knowing of problems with Mr Wang’s emails a few weeks earlier and in circumstances where PC64 was identical to previous payment claims numbered 60–63.  Each of which had been responded to with a valuation certificate valuing every payment claim at nil dollars and where the respondent insisted upon payment of PC64, despite knowing that it had not been delivered by email to Mr Wang.
  2. [83]
    Whilst it is correct that the primary judge’s reasons on this issue did not specifically address each of those contentions, there is no basis to conclude that the primary judge’s reasons were inadequate, or that his findings in respect of this aspect of the appellant’s claim were contrary to the evidence.
  3. [84]
    Once the primary judge had properly rejected the appellant’s assertions of the parties having laboured under a common assumption that a payment claim could not be validly given unless it was delivered by email to Mr Wang and had properly rejected the appellant’s contention that the respondent’s conduct had been misleading or deceptive, there was no need for the primary judge to provide detailed reasons in relation to this aspect of the appellant’s claim.
  4. [85]
    As the primary judge observed, nothing in the respondent’s conduct in sending the email to Mr Wang and to the other five recipients, was “offensive to a conscience informed by a sense of what is right and proper according to the values … within contemporary Australian society”.[16]  Further, having regard to the respondent’s failure to assert that Mr Ruttledge had deliberately ignored the bounce back email and that the respondent had proceeded to insist on payment knowing that it had received the bounce back email, there is no basis to find that the primary judge’s conclusion that “Nothing in the circumstances of this case establishes dishonesty in behaviour, or trickery or sharp practice or any other basis for unconscionability under s 21 of the ACL”[17] was not open on the evidence or inconsistent with the evidence as a whole.

Conclusions

  1. [86]
    The appellant has failed to establish any error on the part of the primary judge.

Canadian Solar Constructions (Australia) Pty Ltd’s appeal (Appeal No 3666 of 2024)

  1. [87]
    After the delivery of judgment on 15 December 2023, the parties were given leave to file written submissions on costs.  In doing so, the appellant (Canadian Solar) submitted that the respondent (RE Oakey) was liable to pay the GST claimed within PC64.  RE Oakey, in reply, submitted, that the order of the court did not require the payment of GST and, further, no such relief had been sought by the Canadian Solar in the proceeding.
  2. [88]
    The primary judge found that the order of the court “plainly” did not require the payment of GST and no such order had been sought in the proceeding.  Having so found, the primary judge declined to make such an order, in the absence of any application to amend the claim, or to reopen the evidence, or to vary the orders made.
  3. [89]
    The primary judge also found that in the absence of any such applications, it was unnecessary to resolve whether the RE Oakey was liable to pay GST on the amount stated in PC64, noting that the orders made by the court “did not purport to restrict or alter or even declare the parties’ rights under the GST legislation”.[18]
  4. [90]
    RE Oakey submits that the primary judge erred, as both the originating application and statement of claim sought the payment of “the sum of $4,037,714.74 (excluding GST)”.  That approach was consistent with the requirements of ss 9(1) and 73(1) of the Act and cl 50.1(b) of the contract.  Canadian Solar submits that the phraseology “excluding GST”, did not mean that no amount was claimed in respect of GST.  Rather, it identified the payment claim value, not including the amount payable in respect of GST.
  5. [91]
    A consideration of the terms of the originating application and subsequent pleadings, supports a conclusion that there was no error in the primary judge’s determination of this aspect of the proceeding.
  6. [92]
    The plain meaning of the words in the claim was that it was a claim for $4,037,714.74.  The reference to excluding GST was to make clear the value of the claim.  The fact that PC64 and the invoice sent in respect of it, together with the previous s 99 notice, expressly claim the sum of $313,071.47 in respect of GST, does not change the plain words used in the originating application and subsequent proceedings.
  7. [93]
    Canadian Solar further submits that the primary judge erred in failing to give adequate reasons for concluding that Canadian Solar was not entitled to the payment of the GST component of PC64.  However, a consideration of the primary judge’s reasons does not support such a conclusion.
  8. [94]
    The primary judge’s brief reasons, in respect of this aspect of the matter, identified the reasons for the primary judge declining to order that RE Oakey pay GST in respect of the claimed amount.
  9. [95]
    Finally, Canadian Solar submitted that the primary judge erred in declining to make the order requested, in the absence of applications to amend the claim, reopen the evidence, or vary the judgment order.
  10. [96]
    The basis for this contention is that the originating application and statement of claim, properly construed, claimed payment of the GST.  Further, it was unnecessary to “reopen” the evidence because the GST component was in evidence and it was not necessary to “vary” the judgment as an additional order could be made in respect of the GST component.
  11. [97]
    For the reasons previously expressed, the originating application and statement of claim properly construed did not claim a sum by way of GST.  In those circumstances, it was necessary to amend the claim.  In doing so there would have been a need to reopen the evidence as the amount claimed by way of GST may have been the subject of dispute.  There was also a need to vary the judgment order as by its terms, it did not include any sum by way of GST.
  12. [98]
    Against that background, there was no error in the primary judge’s observations in respect of the absence of such applications.

Conclusions

  1. [99]
    Canadian Solar has failed to establish any error on the part of the primary judge.

Orders

  1. [100]
    I would order:

In Appeal No 312 of 2024:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal.

In Appeal No 3666 of 2024:

  1. The appeal is dismissed.
  2. The appellant pay the respondent’s costs of the appeal.
  1. [101]
    WILSON J:  I agree with Boddice JA.

Footnotes

[1]The clause refers to “under the SOP Act”.  The contract defined “the SOP Act” as the Building and Construction Industry Payments Act 2004 (Qld).  But pursuant to cl 1.2 references to legislation include any statutory substitutes, so it was common ground that “the SOP Act” should be understood as a reference to the BIF Act.

[2]Additionally, if delivery was required pursuant to clause 6.1, the document would have to be delivered via the EDMS.

[3]Appeal No 312 of 2024.

[4]Appeal No 3666 of 2024.

[5]The Act is the successor to the Building and Construction Industry Payments Act 2004 (Qld) (“SOP Act”), which came into force five days after the execution of the contract.

[6]Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67 at [85].

[7]MLW Technology Pty Ltd v May [2005] VSCA 29 at [49].

[8]Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 9 at 109-110.

[9]The Owners Strata Plan 56587 v Consolidated Quality Projects Pty Ltd [2009] NSWSC 1476 at [29].

[10]XL Insurance Co SE v BNY Trust Company of Australia Ltd [2019] NSWCA 215 at [72], citing FC Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985 at [13].

[11]Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429 at 437.

[12]Emphasis added.

[13]The Trust Company (Australia) Ltd atf the WH Buranda Trust v Icon Co (Qld) Pty Ltd [2019] QSC 87 at [57].  See also, Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141 at [141]–[142].

[14][2006] NSWCA 259 at [58].

[15]Fox v Percy (2003) 214 CLR 118.

[16]Reasons below at [106], citing Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 at [93].

[17]Reasons below at [107].

[18]Reasons below at [28].

Close

Editorial Notes

  • Published Case Name:

    RE Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd; Canadian Solar Construction (Australia) Pty Ltd v RE Oakey Pty Ltd

  • Shortened Case Name:

    Re Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd

  • MNC:

    [2024] QCA 202

  • Court:

    QCA

  • Judge(s):

    Bond JA, Boddice JA, Wilson J

  • Date:

    29 Oct 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 28815 Dec 2023Order that defendant pay plaintiff the sum of $4,030,714.74 (excluding GST), together with interest, under the Building Industry Fairness (Security of Payment) Act 2017: Freeburn J.
Primary Judgment[2024] QSC 2705 Mar 2024Judgment on costs and issues of GST and interest: Freeburn J.
Notice of Appeal FiledFile Number: CA 312/2411 Jan 2024Notice of appeal filed.
Notice of Appeal FiledFile Number: CA 3666/2422 Mar 2024Notice of appeal filed.
Appeal Determined (QCA)[2024] QCA 20229 Oct 2024Appeals dismissed: Boddice JA (Wilson J agreeing, Bond JA agreeing in separate reasons).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
1 citation
Jump To
Cite 1 - (1973) 129 CLR 99
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36
1 citation
Jump To
Cite 1 - [1973] HCA 36
Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1
1 citation
Jump To
Cite 1 - (2019) 267 CLR 1
Barrie Toepfer Earthmoving and Land Management Pty Ltd v CGU Insurance Ltd [2016] NSWCA 67
2 citations
Jump To
Cite 1 - [2016] NSWCA 67
Cite 2 - [2016] NSWCA 67
Canadian Solar Construction (Australia) Pty Ltd v Re Oakey Pty Ltd [No 2] [2024] QSC 27
1 citation
Jump To
Cite 1 - [2024] QSC 27
Canadian Solar Construction Pty Ltd v Re Oakey Pty Ltd [2023] QSC 288
1 citation
Jump To
Cite 1 - [2023] QSC 288
Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd[2015] 1 Qd R 265; [2014] QSC 30
3 citations
Jump To
Cite 1 - [2014] QSC 30
Cite 2 - [2014] QSC 30
Cite 3 - [2015] 1 Qd R 265
Falgatt Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2006) NSWCA 259
2 citations
Jump To
Cite 1 - (2006) NSWCA 259
Cite 2 - (2006) NSWCA 259
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
1 citation
Jump To
Cite 1 - (2003) HCA 22
Holdings Pty Ltd v Shiprock Holdings Pty Ltd [2010] NSWSC 985
1 citation
Jump To
Cite 1 - [2010] NSWSC 985
Metacorp Pty Ltd v Andeco Construction Group Pty Ltd (2010) 30 VR 141
1 citation
Jump To
Cite 1 - (2010) 30 VR 141
MLW Technology Pty Ltd & Anor v May [2005] VSCA 29
2 citations
Jump To
Cite 1 - [2005] VSCA 29
Cite 2 - [2005] VSCA 29
SGR Pastoral Pty Ltd v Christensen(2019) 2 QR 334; [2019] QSC 229
3 citations
Jump To
Cite 1 - [2019] QSC 229
Cite 2 - [2019] QSC 229
Cite 3 - [2019] QSC 229
The Owners Strata Plan 56587 v Consolidated Quality Projects [2009] NSWSC 1476
2 citations
Jump To
Cite 1 - [2009] NSWSC 1476
Cite 2 - [2009] NSWSC 1476
The Trust Company (Australia) Ltd v Icon Co (Qld) Pty Ltd [2019] QSC 87
2 citations
Jump To
Cite 1 - [2019] QSC 87
Cite 2 - [2019] QSC 87
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429
2 citations
Jump To
Cite 1 - (1968) 118 CLR 429
Cite 2 - (1968) 118 CLR 429
Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8
1 citation
Jump To
Cite 1 - [1968] HCA 8
XL Insurance Co Se v BNY Trust Company of Australia Ltd [2019] NSWCA 215
2 citations
Jump To
Cite 1 - [2019] NSWCA 215
Cite 2 - [2019] NSWCA 215

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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