Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd
[2012] QDC 324
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- Unreported Judgment
- Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd[2012] QDC 324
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Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd[2012] QDC 324
Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd[2012] QDC 324
DISTRICT COURT OF QUEENSLAND
CITATION: | Peter Boyd Enterprises Pty Ltd v QR Concrete Pty Ltd [2012] QDC 324 |
PARTIES: | PETER BOYD ENTERPRISES PTY LTD Plaintiff AND QR CONCRETE PTY LTD Defendant |
FILE NO/S: | D 4069/2010 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 31 August 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 July 2012 |
JUDGE: | McGill DCJ |
ORDER: | Judgment for the defendant with costs. Counter-claim dismissed with costs. |
CATCHWORDS: | BUILDING AND ENGINEERING CONTRACTS – Recovery of monies – statutory debt – whether document payment claim – whether served. Building and Construction Industry Payments Act 2004 s 17(2); 103(1). Acts Interpretation Act 1954 s 39A. Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1 – followed. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 – applied. Fernandes Construction Pty Ltd v Taymoor Coal Pty Ltd [2007] NSWSC 391 – followed. Hawkins Construction (Australia) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136 – cited. Jemzone Pty Ltd v Trytan Pty Ltd [2002] NSWSC 395 – cited. Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103 – followed. Minimax FireFighting Systems Pty Ltd v Brenmore Engineering (WA) Pty Ltd [2007] QSC 333 – considered. Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114 considered. Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 – followed. S V Steel Supplies Pty Ltd v Palwizat [2007] QSC 24 – considered. T & M Buckley Pty Ltd v 57 Moss Road Pty Ltd [2010] QCA 381 – cited. Walter Construction Group Ltd v CPL (Surrey Hills) Pty Ltd [2003] NSW SC 266 – followed. |
COUNSEL: | MJ Taylor for the plaintiff PA Ahern for the defendant |
SOLICITORS: | Middletons Solicitors for the plaintiff Jim Feehely Project Law for the defendant |
- [1]This is an action to recover a debt allegedly owing under s 19 of the Building and Construction Industry Payments Act 2004 (“the Act”). The plaintiff alleges that a payment claim in compliance with the Act was served on the defendant and the defendant did not serve a payment schedule in response within the time limited by the Act, so that pursuant to s 19 the amount of the claim became a debt owing by the defendant to the plaintiff. Although there are other issues raised on the pleadings, it was agreed at the trial that there were only two issues to be resolved: First, whether the document relied on by the plaintiff as the payment claim was served on the defendant, and second, whether the document took effect as a payment claim for the purposes of the Act. The defendant’s counter-claim was not pursued at the trial.
Background
- [2]On about 28 September 2009 the parties entered into a contract for the manufacture and installation of pre-cast concrete panels in the construction of a services tunnel at the Gold Coast University Hospital site.[1]The contract provided for payment claims to be made monthly and for them to contain certain information. Clause 2.8(a) provided:
“All claims to be given or served will be deemed to have been received at the earlier of the time of actual receipt and:
- (i)if the claim is delivered by hand to the receiver, at the time of delivery;
- (ii)if the claim is posted in a postage paid envelope addressed to the receiver, three days from the date of posting; and
- (iii)if the claim is transmitted by facsimile machine to the receiver, upon receipt by the sender of a confirmation or transmission report indicating the facsimile was received or upon receipt by the sender of the confirmation answer-back code of the receiver.”
- [3]The plaintiff says that it completed the subcontract works between October 2009 and August 2010. It issued a total of 31 tax invoices to the defendant, claiming a total of just over $1M; 13 of these have been paid, but the remainder have not been paid.[2]It appears to me that two of the claims not paid relate to the original contract work (invoices 1582 and 1639) while the remainder relate to variations or other changes.
- [4]On 4 October 2010 the plaintiff’s factory manager sent an email to the defendant’s project manager enclosing all of the unpaid tax invoices and some documents presumably required under the contract.[3]It had been the practice of the defendant’s previous project manager to pay claims on invoices, but a new project manager had taken over who required the claims to be lodged in a particular form in compliance with the contract.[4]He returned an email attaching a proforma and said he required compliance with that form.[5] A claim following that form was prepared, and placed along with a covering letter and copies of a number of invoices into a sealed envelope. It was this bundle which constitutes the documents relied on by the plaintiff as the progress claim.
- [5]The plaintiff’s factory manager, who was not cross examined, deposed to having addressed the envelope with the name of the defendant’s project manager, the name of the defendant and the street address of the defendant’s principal office.[6]He put the material in that envelope, had the sealed envelope franked and posted the envelope with other mail at a posting box at Yatala. The plaintiff’s accounts manager said that it was his responsibility to collect, open and distribute mail addressed to the plaintiff including mail which was returned to sender, and he had no recollection of any letter from the plaintiff to the defendant being returned to his office on this basis.[7]
- [6]The defendant’s premises are located in a converted house in a cul de sac.[8]There is a letterbox on the front fence accessible from the footpath, which is capable of accommodating easily the volume of mail commonly received, which at busy times is of the order of 50 items per day.[9]The defendant’s receptionist could see the street from her desk, and ordinarily was aware that mail has been delivered, and went out to collect it immediately; if she was otherwise engaged and did not notice that the postie had been, she still went out at the time when she would expect mail to have been delivered.[10]Accordingly, ordinarily mail was not left in the letterbox for any great length of time after it had been placed there. She opened the mail (except when it was marked Private and Confidential) and distributed it as was appropriate, with anything in the nature of an invoice or claim for payment being passed to the defendant’s accounts officer.[11]The defendant’s office only has about 12 people working there,[12]so that the process of distributing mail would not be very complicated and it would be easy enough for someone who had received a letter which ought to have been delivered elsewhere to pass it on.
- [7]The receptionist has no particular recollection of receiving such a letter but would not recall it. The accounts officer has deposed to a practice where, if a document of this nature were received, it would have been passed on to the project manager, a practice likely to have been reinforced by the fact that his name was written on the envelope.[13]The defendant’s factory manager, who was cross examined, deposed to not having received such a document.[14]He said that had it been received he would have put it on a paper file which he maintained for the project. After it became known that the plaintiff was alleging that the document had been sent by post at this time a search was conducted in the office, but the document was not located.[15]He was not aware of such a document having been received. As far as he was concerned at the time there was no money owing to the plaintiff, and he had no reason to follow up the earlier exchange of emails with the plaintiff: p 13.
Service - the arguments
- [8]The plaintiff relied on s 103(1) of the Act which provides: “A notice or other document that under the Act is authorised or required to be served on a person, may be served on a person in the way, if any, provided under the construction contract concerned.” The plaintiff submitted that the effect of this provision was that the terms of the contract applied to service under the Act, and that relevantly clause 2.8(a) of the contract referred to earlier had the effect that, so long as the claim was properly posted, it was deemed to have been received three days from the date of posting, in the absence of evidence of actual receipt at an earlier time.
- [9]It was further submitted that s 39 of the Acts Interpretation Act 1954also provided that if an Act requires or permits a document to be served on a person the document may be served on a body corporate by sending it by post to a principal office of the body corporate. It was agreed that the office to which this letter had been addressed was a principal office of the defendant, and it was submitted the effect of s 39 was that service was effected by sending the letter to that office whether or not it was actually received by the defendant. It was submitted that this was the effect of the authorities on the operation of these provisions, in particular Fancourt v Mercantile Credits Ltd(1983) 154 CLR 87 and S V Steel Supplies Pty Ltd v Palwizat[2007] QSC 24, and the cases referred to in that decision, subject to a situation where a party’s actions amounted to an abuse of process, something which was not alleged in the present case.
- [10]Counsel for the defendant submitted that the issue was whether the document had been served for the purposes of s 18 of the Act, and that, although the payment claim might be served in the way provided under the construction contract pursuant to section 103(1), subsection (2) expressly provided that subsection (1) did not limit or exclude the Acts Interpretation Act1954 s 39 or the provisions of any other law about the service of notices. Accordingly the limitation in relation to service at a particular time which followed from the operation of s 39A of the Acts Interpretation Act was not excluded. In any case, clause 2.8(a) was not a provision of the contract providing for a way in which a document may be served, but was a provision fixing the time at which it was taken to have been served. What mattered for the purpose of determining the latter was s 39A of the Acts Interpretation Act, and s 103 of the Act did not exclude the operation of that section.
Analysis
- [11]I consider the latter argument is correct, and that the deeming provision in the contract in relation to service at a particular time in clause 2.8(a) is not picked up by s 103(1) of the Act. It does not provide in what way a notice may be served, but when a notice is taken to have been served depending on the way in which it is served.[16]I do not consider that it excludes the operation, in relation to the service of a payment claim under the Act, of s 39A of the Acts Interpretation Act 1954. That section provides relevantly:
“(1) If an Act requires or permits a document to be served by post, service-
(a) may be affected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.”
- [12]It followed that, although addressing, prepaying and posting the document is a means of effecting service which operates independently of actual receipt, or even delivery, of the document, where it is relevant to be able to show that the document has been served at a particular time, it is open to prove to the contrary of the prima facie position that it was served at the time at which the letter would be delivered in the ordinary course of post.
- [13]That follows from what was said by the High Court in Fancourt v Mercantile Credits Ltd(supra). The court at page 96 referred to certain cases and continued: “The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed.”
- [14]Their Honours went on to refer to the authorities. On the following page they noted that such a result means that, “notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery.” They went on to emphasise the importance of proof of non-delivery rather than non receipt, and noted that the fact of non-receipt did not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of post. These comments were dicta, there being no evidence of non-delivery in that case, but but have subsequently been treated as authoritative.
- [15]In the present matter the statutory liability to pay the amount claimed to the claimant arises only upon the expiration of the earlier of the time required by the relevant construction contract or ten business days after the payment claim is served: the Act s 18(4). Accordingly, for the plaintiff to establish its cause of action, it has to show not merely that the payment claim was served but that it was served upwards of ten business days prior to the time when the claim was issued. It is therefore a case where it is necessary for the plaintiff to rely on proof of service at a particular time, or at least prior to a particular time, and it is therefore open to the defendant to prove to the contrary, that is to say, to prove non-delivery. This the defendant sought to do.
- [16]On the whole I consider that the defendant’s evidence of non-delivery is persuasive. If the document was in an envelope which was properly addressed, prepaid and posted as a letter, which I accept, there are only three possibilities. Either the document was not delivered by the post office to the defendant, or it was removed from the letterbox by someone other than an employee of the defendant, or it was removed from the letterbox by an employee of the defendant and has been misplaced subsequently. Given the evidence as to the circumstances of mail delivery to the defendant’s premises, and bearing in mind that there was evidence that the defendant has never been aware of any other occasion where mail has apparently gone missing from its letterbox, or of people stealing mail from the letterbox[17], I think the second of those possibilities is highly unlikely and can be essentially disregarded.
- [17]Overall I was impressed by the evidence of the defendant’s witnesses and accept it, and consider that it is quite unlikely that the letter was in fact received by the defendant but has since been lost. On the other hand, it is always possible that the letter may not have been delivered to the defendant by Australia Post. There was evidence from the person who collected the mail from the letterbox that from time to time mail which was addressed to someone else was found among the mail delivered to the defendant, and on at least one occasion someone who lived nearby had informed the defendant that its mail had been placed in her letterbox.[18] On the whole I think the most likely explanation is that the letter was in fact delivered to someone else, who did not put it back in the post marked either “return to sender” or “try again”, or himself deliver it to the defendant. On the evidence before me I consider the defendant has discharged the onus of proving non-delivery on the balance of probabilities. Accordingly the plaintiff cannot establish its cause of action under the Act and its claim must be dismissed.
Form of the payment claim
- [18]I shall express a conclusion in relation to the second matter raised, on a precautionary basis. The requirements of a payment claim are not very extensive, and are set out in s 17(2) of the Act: it must identify the relevant work or goods and services, state the amount claimed to be payable, and “must state that it is made under the Act.” There is no required form, and it is appropriate to take into account the document as a whole and consider whether a reasonable person reading the document as a whole would understand that a claim was being made under the Act. I am conscious of the general observation that the Act emphasises speed and informality so the question of whether a document satisfies that the requirement of s 17(2) should not be approached from an unduly critical viewpoint.[19]
- [19]I accept that the covering letter, the document headed “Progress Claim Number 6” and the attached invoices and other documents should be considered together to determine whether they constitute a payment claim for the purposes of the Act. The difficulty is whether that collection fairly satisfied the requirement that the claim state that it is made under the Act. The plaintiff relied on the fact that each of the invoices bore, in fairly fine but legible print, the statement “This is a payment claim under the Building and Construction Payments Act 2004.” It was submitted that the effect of these statements should properly be understood as applying to the document as a whole so that Progress Claim Number 6 should be treated as stating that it was made under the Act.[20]
- [20]The difficulty I have with that submission is that the invoices which were attached to the progress claim were not on this occasion sent for the first time to the defendant.[21]The invoices have a range of dates on them, and cover numbers between 1582 and 1817, both features suggesting they were not all issued for the first time on this occasion. There is nothing in the material to suggest to the contrary, and I draw that inference. What was happening here was that the plaintiff was gathering together a number of these invoices in order to include them in a progress claim in the form required by the defendant, attaching the invoices as a means of explaining the content of that claim. What the endorsement on the individual invoices conveys to me therefore is that each invoice when it was delivered was made a “payment claim” for the purposes of the Act.[22]I also think it is significant that there is nothing in either the covering letter or the progress claim document to refer to the Act. In my opinion a reasonable person considering the bundle of documents as a whole would not have understood that that bundle constituted a payment claim for the purposes of the Act, but that the plaintiff was asserting that each of the individual invoices when it was issued had constituted such a claim.
- [21]There is New South Wales authority to support the proposition that for a document to be effective as a payment claim it must be clear on the face of the document that the requirements of the Act are met, and that the question is whether a reasonable person who considered the notice as a whole “would be left in any doubt as to its meaning”: Walter Construction Group Ltd v CPL (Surrey Hills) Pty Ltd[2003] NSW SC 266 at [82]; Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd[2003] NSWSC 1103 at [58]; Brookhollow Pty Ltd v R & R Consultants Pty Ltd[2006] NSWSC 1 at [19]. In other words, it must be clear on the face of the document that it is a payment claim for the purposes of the Act, so if that is doubtful then the requirements of the Act have not been satisfied. Such an approach is understandable because, given the consequences which flow if a document which is in fact a payment claim is not identified as such, it is important that it be clear whether a document is being used to activate the provisions of the Act in this way.[23]
- [22]It was submitted for the plaintiff that there was no reasoning in the New South Walesdecisions justifying this approach. I consider that the approach is justified by the reasoning I have just set out; reasoning to the same or similar effect was also expressed in Jemzone Pty Ltd v Trytan Pty Ltd[2002] NSWSC 395 at [41], in Leighton Contractors(supra) at [58], in Fernandes Construction (supra) at [15] – [19] and in Protectavale Pty Ltd v K2K Pty Ltd[2008] FCA 1248 at [12]. Given the way in which the Act operates, it must be clear to a person who receives a document whether that document activates the statutory mechanism for imposing a debt, which may otherwise not be payable at all. There is less reason for concern about the risk of ambiguity as to the scope and content of a payment claim than about whether the document is a payment claim at all.
- [23]This approach has the support of the New South Walesauthority. It was also adopted by Finkelstein J in Protectavale (supra) at [10].[24]I do not consider that what was said in Neumann Contractors (supra)is inconsistent with the adoption of this approach.[25]There have been a number of decisions in Queensland about what is required to satisfy s 17(1)(a), which focus on the identification of what is being claimed for, and emphasise that it is to be assessed in a reasonable and practical way.[26]These decisions focus on the content required, rather than the degree of clarity with which it must be expressed. Ultimately, I do not consider that I would be justified in departing from the approach adopted in Leighton Contractors (supra).
- [24]Applying that approach I consider that a reasonable person who had considered the material as a whole would at least be left in substantial doubt as to whether that bundle of material was a claim under the Act, because it was not clear that that claim stated that it was made under the Act. It is not I think clear on the face of those documents that this bundle represents a claim made under the Act, rather than a collection of claims which had previously been made under the Act. Accordingly, even if I had not found that the defendant had proved the contrary for the purposes of s 39A(1)(b) of the Acts Interpretation Act 1954, but that the document had been effectively served, I would still conclude that it was not effective as a payment claim under the Act.
- [25]In those circumstances it is unnecessary to go on and note the further difficulty that the list of invoices identified in the progress claim does not include two of the invoices sued on, and, of the invoices sued on, four are not included in the copy invoices in the bundle of documents served as the progress claim.[27]This point was raised by counsel for the defendant, and not answered by counsel for the plaintiff; it does not seem to me that there is an answer to it, but in any event that point is academic.
- [26]In the circumstances therefore the plaintiff is not entitled to the statutory debt under the Act, and the plaintiff’s claim is dismissed. Insofar as I can tell, the defendant is entitled to the costs of the action. Finally, I would like to compliment both counsel on the efficiency with which the trial was conducted.
Footnotes
[1] Affidavit of Long para 2, Exhibit SML1.
[2] Affidavit of Boyd filed 24 April 2012 paras 9-14; Exhibit SB2.
[3] Affidavit of Long filed 27 March 2012 para 8, Exhibit SML2.
[4] Affidavit of McCosh filed 14 May 2012 paras 6, 7, 10.
[5] Affidavit of Long filed 27 March 2012, Exhibit SML3.
[6] Affidavit of Long filed 27 March 2012 paras 10, 11, 14, 20, Exhibit SML4.
[7] Affidavit of Mahony filed 27 March 2012.
[8] Affidavit of McCosh filed 14 May 2012 para 2.
[9] Affidavit of Allen filed 30 July 2012 paras 3, 4.
[10] Allen p 19.
[11] Affidavit of Allen filed 30 July 2012 para 5.
[12] McCosh p 11: 10 – 15 people.
[13] Affidavit of N Jones filed 14 May 2012 paras 4, 6, 7.
[14] Affidavit of McCosh filed 14 May 2012 paras 11, 12, 13.
[15] Affidavit of C Jones filed 14 May 2012 para 5.
[16] It is analogous to s 39A(1)(b) rather than s 39 of the Acts Interpretation Act 1954.
[17] McCosh p 14.
[18] Allen p 20. For what it is worth that accords with my own experience at home, where we often find other people’s mail in our letterbox. I doubt if Australia Post these days operates with the level of reliability of the postal service in the past which inspired legislatures to enact these provisions.
[19] Minimax Fire Fighting Systems Pty Ltd v Brenmore Engineering (WA) Pty Ltd [2007] QSC 333 at [20]; approved in Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2011] 2 Qd R 114 at [22].
[20] The absence of the word “Industry” was of no consequence: Hawkins Construction (Australia) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136.
[21] The point is perhaps not entirely clear on the material, but it is the way in which I would read the affidavit of Boyd filed 27 March 2012 para 9.
[22] The plaintiff did not seek to rely on that proposition for the purpose of this proceeding, and I can therefore disregard it.
[23] Fernandes Construction Pty Ltd v Taymoor Coal Pty Ltd [2007] NSWSC 391 at [16].
[24] Note also the points made at [12] which justify the need for clarity.
[25] Indeed in Neumann at [24] Muir JA cited Leighton Contractors and Protectavale, the latter at [10] – [15], which could be seen as approval of this aspect of those decisions.
[26] See for example T & M Buckley Pty Ltd v 57 Moss Road Pty Ltd [2010] QCA 381 at [33]. This was also the matter in issue in Neumann (supra).
[27] Affidavit of Long Exhibit SML2: missing invoices are 1641, 1642, 1643 and 1776. Invoice 1522, not sued on, was included.