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Woodward v Hallinan[2021] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:

Woodward & Ors v Hallinan & Ors [2021] QDC 218

PARTIES:

CHARLES STODDART WOODWARD

(first plaintiff)

CHARLIE WOODWARD BUILDER PTY LTD

ACN 119 109 296

(second plaintiff)

BPM BUILT BRISBANE PTY LTD

ACN 161 968 190

v

JONATHON JAMES HALLINAN

(first defendant)

BAYSIDE PROJECT MANAGEMENT PTY LTD

ACN 112 659 337

(second defendant)

JHCW SILVAN DEVELOPMENT PTY LTD

ACN 604 911 828

(third defendant)

JHCW SYLVAN LAND PTY LTD

ACN 604 908 349

(fourth defendant)

FILE NO/S:

BD 1711/20

DIVISION:

Civil

PROCEEDING:

Civil Hearing

ORIGINATING COURT:

District Court

DELIVERED ON:

10 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2021

JUDGE:

Burnett AM, DCJ

ORDER:

  1. That judgment be entered for the Plaintiffs against the first defendant in the sum of $266,862.18.
  2. That judgment be entered for the Plaintiffs against the second and third defendants in the sum of $268,523.18.
  3. Unless application is made for other orders within 14 days of today’s date; order Defendants pay the Plaintiffs’ costs of and incidental to the application to be assessed on the standard basis and that such costs be the Plaintiffs’ costs in the cause in any event.

CATCHWORDS:

SUMMARY JUDGEMENT – DEED OF GUARANTEE – MONIES OWING PURSUANT TO A DEED – where the parties entered into a Deed of Guarantee to determine the relationship between a builder and property developer – where plaintiffs claim to have incurred expenses under the Deed – whether the defendants are liable to pay the plaintiffs – whether the deed is enforceable irrespective of absence of payment by the plaintiff

LEGISLATION

Uniform Civil Procedure Rules 1999 r 292

CASES

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232

Wren v Mahoney [1972] 126 CLR 212

New Cap Reinsurance Corporation Limited in Vic (in liq) & Anor v A E Grant & Ors (2008) 68 ACSR 176

In Re Richardson; Ex parte Governors of St. Thomas’s Hospital [1911] 2 K.B. 705

Firma C-Trade SA v Newcastle Protection & Indemnity Association [1991] 2 AC 1

Jervis v Harris [1996] Ch 195

Cigna Insurance Asia Pacific ltd v Packer (2000) 23 WAR 159

Langford Concrete Pty ltd v Finlay [1978] 1 NSWLR 14

Cellulose Products Pty Ltd v Truda (1970) 92 W.N. 561

R.D. Harbottle (Mercantile) Ltd v National Westminster Bank Limited [1978] 1 QB 146

Edward Owen Engineering Limited v Barclays Bank International Limited [1978] 1 QB 159

COUNSEL:

D Keane for the Plaintiff applicant

M Martin QC for the Defendant respondent

SOLICITORS:

HWL Ebsworth for the Plaintiff applicant

Mills Oakley for the Defendant respondent

Introduction

  1. [1]
    On 31 October 2019 the Plaintiffs (the Builders) entered into a Deed of Guarantee, Indemnity and Release (the Deed) with the Defendants (the Developers) in respect of various building projects (the Projects) being undertaken by them and their related entities. The first plaintiff (Woodward) and the first defendant (Hallinan) were a builder and property developer respectively. They proposed to develop and build five properties in locations at West End and Toowong.
  2. [2]
    The first of the projects commenced in 2013 and the balance proceeded progressively from then. Woodward owned and controlled the second plaintiff and held a half share in the third plaintiff. The second and third plaintiffs undertook the relevant building works.
  3. [3]
    Hallinan controlled the second defendant, Bayside Project Management Pty Ltd and held half shares in the third and fourth defendants. Woodward held the other half of     the shares in those two entities. Both Woodward and Hallinan controlled the third and fourth defendants until 28 February 2020.
  4. [4]
    The Deed sought to indemnify the Plaintiffs in respect of various expenses incurred from 31 October 2019 and related to bringing those projects to completion.
  5. [5]
    The Plaintiffs seek summary judgment against the Defendants for monies owing  pursuant to the Deed. It claims the monies owing  pursuant to the guarantee and  indemnity provided by the defendants to them by the Deed. The Defendants resist the application contending that:
    1. (a)
      The Plaintiffs’ claims in respect of some amounts claimed are unparticularised such that they cannot respond to the claim;
    2. (b)
      The Deed does not render them liable for monies which are merely owed by the Plaintiffs, but only in respect of amounts paid;
    3. (c)
      The claim includes claims for amounts related to alleged defects on the Projects, that is defective works performed by the Builders; and
    4. (d)
      The claim includes claims for sums not secured by the Deed. 

Principles informing summary judgement application

  1. [6]
    UCPR r 292 permits a plaintiff to apply for judgment against the defendant and for judgment to be given if the court is satisfied that the defendant has no real prospects of successfully defending all or part of a plaintiff’s claim and there is no need for a trial of the claim or part of the claim.  It is well settled that the purpose of the rule is to save expense and achieve expedition and avoid the court’s resources being used where it is in inutile: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.  Likewise it is uncontroversial that the words “no real prospect of succeeding” employed in the rule direct the court to consider whether there is a “realistic” as opposed to a “fanciful” prospect of success.  In the application the applicant bears the burden of establishing it is entitled to summary judgment in respect of its claim but once its claim has been made out in the evidentiary onus shifts to the respondent.

The Deed

  1. [7]
    Materially the Deed provides,

By Clause 1 – definitions and interpretations clauses

Claim

means any demands, claims, suits, actions, damages, liabilities, losses, costs and expenses

Liability

means all costs (including any tax), charges, losses, damages, expenses, penalties and liabilities of any kind (including legal costs incurred in defending or appearing in any Proceeding or) incurred by a Secured Party[1] (in any capacity) arising out of:

  1. (a)
    the conduct of the business of the Relevant Company; or
  1. (b)
    any act or omission of the Director in their capacity as a Director of a Relevant Company

Projects

means each and all of the following land development projects:

  1. (a)
    Onyx – 31 Bank Street West End
  1. (b)
    Escent – 10 Buchanan Street West End
  1. (c)
    Blackfold – 27 Bank Street West End
  1. (d)
    Highline – 8 Bank Street West End
  1. (e)
    White Dawn – 52 Sylvan Road Toowong

Relevant Companies

means each and all of

  1. (a)
    BPM Built Brisbane Pty Ltd ACN 161 968 190 [third plaintiff]
  1. (b)
    JHCW Sylvan Development Pty Ltd ACN 604 911 828 [third defendant]
  1. (c)
    JHCW Sylvan Development Pty Ltd ACN 604 908 349 [fourth defendant]

  Secured Amounts

means all current and future costs, debts and liabilities of the Relevant Companies, Charlie Woodward Builder Pty Ltd ACN 119 109 296 or Charles Stoddart Woodward in relation to a Project on any account and in any capacity, irrespective of whether the costs, debts or liabilities:

  1. (a)
    are actual, prospective, contingent or otherwise;
  1. (b)
    are at any time ascertained or unascertained;
  1. (c)
    are owed or incurred by or on account of Relevant Company or Secured Party alone, or severally or jointly with any other person;

    Including, but not limited to:

  1. (a)
    construction costs;
  1. (b)
    defect rectification costs;
  1. (c)
    maintenance costs;
  1. (d)
    retention payments to subcontractor and others;
  1. (e)
    loans for the Projects;
  1. (f)
    payments under guarantees or other securities given by a Secured Party to secure an obligation of a Relevant Company in relation to a Project;
  1. (g)
    loan to BPM Built Brisbane Pty Ltd ACN 161 968 190 for a crane;
  1. (h)
    any overheads, wages or employee superannuation contributions or other employee benefits.
  1. [8]
    Schedule 1 of the Deed defined the Secured Parties as Charles Stoddart Woodward [first plaintiff], Charlie Woodward Builder Pty Ltd [second plaintiff] and BPM Built Brisbane Pty Ltd [third plaintiff]. It defined the Indemnifying Parties as Jonathon James Hallinan [first defendant], Bayside Project Management Pty Ltd [second defendant], JHCW Sylvan Development Pty Ltd [third defendant] and JHCW Sylvan Land Pty Ltd [fourth defendant].
  2. [9]
    The recitals of the Deed noted,

“The Secured Parties have incurred costs and liabilities and/or taken other actions, or will take further actions in relation to the completion of the Projects, at the request of the Indemnifying Parties and subject to the condition that the Indemnifying Parties enter into this Deed.”

  1. [10]
    Clause 2 of the Deed, the ‘consideration’ clause, provides:

“The Indemnifying Parties acknowledge that:

  1. (a)
    it enters into this Deed in consideration of the Secured Parties taking further actions in relation to the completion of the Projects, at the Indemnifying Parties’ request; and
  1. (b)
    the Secured Parties rely on the indemnity provided by this Deed in taking future actions in relation to the completion of the Projects.
  1. [11]
    Clause 3 proceeds to address the guarantee and indemnity. Relevantly, it provides

3. Guarantee and Indemnity

Clause 3.1 guarantee and indemnity

On and from the Effective Date, each of the Indemnifying Parties (except Jonathon James Hallinan who has no liability, obligation or responsibility personally in relation only to any Secured Amount arising from a defect in respect of any Project or a Claim or loss arising from a defect in respect of any Project):

  1. (a)
    unconditionally and irrevocably guarantees to each of the Secured Parties on demand by a Secured Party the due and punctual payment of the Secured Amounts.
  1. (b)
    separately, unconditionally and irrevocably indemnify, at all times keep indemnified, each of the Secured Parties against;
  1. (i)
    all Claims (whether arising before or after the Effective Date) which may be made or brought against or suffered or incurred by a Secured Party arising out of, or in connection with, a Project; and
  1. (ii)
    any loss (whether arising before or after the Effective Date) suffered, paid or incurred by a Secured Party in relation to the non-payment of any Secured Amount; and
  1. (iii)
    all Claims (whether arising before or after the Effective Date) which may be made or brought by one or more of the Other Companies against a Secured Party

3.3 No prior enforcement

The Indemnifying Parties’ obligations under this Deed are principle obligations and may be enforced against one or more of the Indemnifying Parties without the Secured Parties being required to exhaust any remedy they may have against a third party.

3.4 Continuing guarantee and indemnity

The guarantee and indemnity given by the Indemnifying Parties in this Deed commences on the Effective Date and remain in full force and effect until termination in writing by all the Secured Parties.

3.5 Principle obligation

 The guarantee and indemnity given by the Indemnifying Parties under this Deed is a principal obligation and will not be treated as ancillary or collateral to any other obligation to the intent that this guarantee and indemnity is enforceable although any other obligation arising between the Indemnifying Parties and the Secured Parties or any of them become wholly or partly unenforceable for any reason.

3.6 Amounts payable on demand

 If an amount payable under this Deed is not expressed to be payable on a specified date, that amount is payable on demand by any Secured Party.

  1.  Release

4.1 Indemnifying Parties

 On and from the Effective Date and to the maximum extent permitted by law, each of the Indemnifying Parties unconditionally and irrevocably releases each of the Released Parties from all Claims arising out of, or in connection with, a Project, whether arising before or after the Effective Date.

9.2 Payments

 The Indemnifying Parties agrees to make payments under this Deed:

 (a) on demand and at a place and in manner reasonably required by the Secured Parties;

 (b) in immediately available funds and without set off, counterclaim or condition, unless required by law, deduction or withholding; and

 …”

The nature and character of the guarantee/indemnity provided by the deed

  1. [12]
    The Deed is no ordinary deed of guarantee and indemnity. The Deed is a bespoke document crafted to govern the particular relationship between Woodward, principally as builder and Hallinan, principally as developer and their joint venture arrangements. To commence with Woodward and Hallinan incorporated a joint venture company, the third plaintiff to undertake building works related to the projects. They each held a 50/50 shareholding in it although Woodward remained it sole director.
  2. [13]
    From about January 2013 the Defendants engaged Woodward through the second and third plaintiffs to undertake the building works related to the five projects defined in the Deed as the Projects. The Deed was executed on 31 October 2019 at a time nearing the completion of the Projects works. I accept the Plaintiffs’ submission that the context in which the Deed was conceived was to effect a separation of the interests of Woodward from those associated with Hallinan following the Projects being completed. It is not apparent whether the parties were in dispute at that time but it is noteworthy that the Deed contained a number of unusual clauses which clauses were specific to the general arrangement between Woodward and Hallinan in the context contended. In particular;
    1. (a)
      The Deed took effect on either the Date of Practical Completion under a specific construction contract or appointment of  “administrators…” of the third plaintiff;
    2. (b)
      Secured Amount meant all …”current and future costs, debts and liabilities of [the Plaintiffs and the second and third defendants] in relation to a Project on any account and in any capacity, irrespective of whether the costs, debts or liabilities … are actual, prospective , contingent or otherwise…”.
    3. (c)
      The Secured Amounts included:
      1. Defect rectification costs
      2. Retention payments to sub-contactors
      3. Loans for the Projects
      4. Loan to the third plaintiff for a crane
      5. Any overheads, wages or employees’ superannuation or other employee benefits.
    4. (d)
      By clause 2 the Deed was entered into in consideration of the Secured parties [the Plaintiffs] taking future actions  in relation to the completion of the Projects at the Indemnifying Parties [the Defendants’] request.
    5. (e)
      By clause 3.1 Hallinan was excluded from obligations arising from “a defect in respect of any Project or a Claim or loss arsing from a defect in respect of any Project”.
    6. (f)
      By clause 4.1 the Defendants released the Plaintiffs from all Claims arising out of or in connection with a Project and the Plaintiffs in turn released the Defendants from any further claim by it in respect the works.
  3. [14]
    Generally the Deed constituted a commercial arrangement between Woodward and his associated entities and Hallinan and his entities to see the completion of the outstanding works due in respect of incomplete Projects . The structure of the Deed by its terms provided to Woodward an assurance of cashflow for the completion of those works.
  4. [15]
    At its essence the deed provides by cl 3.1 that “… each of the Indemnifying Parties
    1. (a)
      unconditionally and irrevocably guarantees to each of the Secured Parties on demand by a Secured Party be due and punctual payment of the Secured Amounts;
    2. (b)
      separately, unconditionally and irrevocably indemnify and at all times keeps indemnified, each of the Secured Parties against … all Claims which may be made or brought … or … incurred by a Secured Party arising out of, or in connection with, a Project”.

  1. [16]
    Clause 3.6 provides that if an amount is payable under the Deed the amount is “payable on demand by any Secured Party”.  The unconditional nature of the obligation existing between the Indemnifying Parties and the Secured Parties is emphasised by cl 3.3 which provides that the obligations under the Deed may be enforced against the Indemnifying Parties without the Secured Parties first being required to exhaust any remedy they may have against a third party.  The obligation arising under cl 3.1 by its terms appears to constitute a principal obligation on the part of the Indemnifying Party to the Secured Party; a construction especially reinforced by cl 3.5, the Principal Obligations clause. Notwithstanding the differing character of guarantees and indemnities the Deed enlivened the obligation of suretyship as a principal one without need for demand or identification of the amount. The loss addressed by the Deed is one arising under the guarantee, or if not, then one which has been characterised as an ‘indemnity as a primary right to be compensated for loss’[2] but which in that event still enlivens an entitlement  to liquidated damages.

The plaintiffs’ claim and defendant’s response

  1. [17]
    The Plaintiffs submit, and I agree, that its claim is simple in principle.  The Plaintiffs’ claim to have incurred expenses within the definition of Secured Amounts under the Deed with the consequence that they are payable by the Indemnifying Parties (the Defendants).  This right arises by reason of cl 3 of the deed which entitles the Plaintiffs (being the Secured Parties) to be paid by the Defendants (being the Indemnifying Parties) for any and all Secured Amounts incurred by the Plaintiffs in connection with the Projects, whether the amounts are current or future costs, debt or liabilities, or are actual, prospective, contingent or otherwise. The obligation is a principal obligation and operates irrespective of prior enforcement. The Plaintiffs made payments to some parties upon presentation of invoices or otherwise incurred liability upon their receipt of invoices from suppliers which sums remain outstanding. The invoices are claimed to relate to building works constituting the Projects and the Plaintiffs contend these also are Secured Amounts. These amounts were particularised in the schedule attached to the Plaintiffs’ submissions and which are incorporated into Schedule “A” to this judgment. 
  2. [18]
    The Plaintiffs’ claim a total of $396,482.14 was paid by them in respect of the Projects. Of that, $11,736.30 comprised defect costs for which they claim now to recover pursuant to the Deed leaving a balance claim $384,745.84 related to other liabilities incurred in respect of the Projects. The Plaintiffs duly demanded the Defendants pay the sum which demands have been refused and now constitute the Plaintiffs’ basis for its application for summary judgment.
  3. [19]
    The Plaintiffs contend that the Defendants’ defence does not give rise to any triable issue or any issue supporting a conclusion that they have any realistic prospects of success. 

Defendants’ contentions

  1. [20]
    The Defendants challenge that assertion. In summary the Defendants’ position is that:
    1. (a)
      with respect to the Secured Amounts generally:
      1. the Deed operates only as an indemnity and not as both a guarantee and indemnity and requires that any Secured Amount must first be paid by the Plaintiffs before it can be recovered from the Defendants;
      2. the amounts claimed by the Plaintiffs are:
        1. not presently due and owing; and/or
        2. not Secured Amounts within the meaning of the Deed;
      3. the Plaintiffs have not provided the Defendants with sufficient particulars of all Secured Amounts as and when they were incurred by the Plaintiffs;
      4. no case is pleaded on behalf of the first and second plaintiffs and they are not entitled to any relief;
      5. there is no description of the works for which costs were incurred – the Defendants are not able to determine what exactly the cost is for;
      6. the costs relate to a defect or a warranty claim with a third party contractor who was responsible for remedying the defective works; and
      7. the first and second plaintiffs as builders are responsible for remedying the defects;
    2. (b)
      with respect to the retentions claimed in paragraph 9A of the Plaintiffs’ claim:
      1. the Defendants have made arrangement with contractors for the payment of the outstanding retentions;
    3. (c)
      with respect to the amounts owed to a Mr Thompson as claimed in paragraphs 10 to 15 of the plaintiffs’ claim:
      1. Mr Thompson is not an employee but is a contractor, therefore, he is not entitled to long service leave and the defendants are not liable to pay the amounts;
      2. the amounts are not Secured Amounts under the Deed;
      3. the amounts have not been paid by the Plaintiffs; and
    4. (d)
      with respect to the QBCC defect rectification costs, as claimed at paragraphs 21 to 25 of the Plaintiffs’ claim, it is embarrassing and ought to be struck out.

Secured amounts claimed by plaintiff entities

  1. [21]
    Mr Martin contends that the claims relate to liabilities incurred by the Secured Parties in respect of sums claimed or liabilities owing to one or other of the Secured Parties. That is some of the amounts claimed are payments due to various of the Plaintiffs themselves, in particular sums claimed in respect of invoices issued by the second plaintiff for rectification works.    Respectfully, in my view, in that is precisely what the Deed contemplated in its context. It is proper to conclude that the parties to the Deed mutually contemplated and agreed that the monies when paid would be dealt with as the building contract required. Accordingly provided the sums claimed constitute an actual liability in respect of the Projects or any of them, is not relevant that the actual liability is due to the second plaintiff or indeed the third plaintiff as builders. In my view the structure of the arrangement, makes commercial sense in the context of a building and construction contract where cashflow is critical.  Its terms enlivens the rights of the Plaintiffs as builders to enforce liabilities incurred by them in respect of the Projects in a summary manner.

Insufficient evidence

  1. [22]
    The Defendants contend that in respect of some items claimed the plaintiffs simply claim without any particularisation of the basis for claim. The Defendants accept the costs might relate to a Project but otherwise are in no position to consider whether the claim is a legitimate claim and should be allowed or instead ought to be challenged. Although the Plaintiffs’ material contains a deposition by Woodward that these sums are Project costs I cannot be satisfied that no triable issue arises in respect of such unparticularised items when as a matter of fairness the defendants are unable to sensibly respond to such a glib and unparticularised demand. Judgement will not be permitted in respect of each item alleged to suffer an absence of particulars. Those particular items are detailed in the Schedule ‘A’ annexed to the judgement.

Items not paid

  1. [23]
    The Defendants contend that some of the amounts claimed by the Plaintiffs are not liquidated sums so the Plaintiffs have to pay those amounts to creditors before they can claim against the Defendants.  They submit the claims are for liabilities which have been incurred by the Plaintiffs but not paid for by them; a situation which the Defendants contend is not provided for by Clause 3.1 of the Deed.  Further, they contend Clause 3.1 itself is deficient as it fails to nominate to whom the Secured Amounts are to be paid.  It was submitted for the Defendants that on a proper construction of the Deed that while the Defendants have an obligation to indemnify the Plaintiffs against the liabilities they have to third parties no liability arises to pay those amounts to the Plaintiffs before the Plaintiffs themselves have made payment.
  2. [24]
    The defendants contend that support for this construction can be found in Wren v Mahoney [1972] 126 CLR 212 at 226, 227 and 230 and New Cap Reinsurance Corporation Limited in Vic (in liq) & Anor v A E Grant & Ors (2008) 68 ACSR 176 at [96] and [99].  Respectfully I do not agree. 
  3. [25]
    Wren v Mahoney was a case considering the capacity of a court in bankruptcy’s duty and power to go behind a judgment relied upon by the petitioning creditor.  That matter was not seriously in issue. However upon a consideration of the underlying debt in issue the Chief Justice acknowledged the principle enunciated in In Re Richardson; Ex parte Governors of St. Thomas’s Hospital [1911] 2 K.B. 705 that at common law a person entitled to an indemnity could not avail himself of his right until he’d actually paid the money.  However, as the decision in Wren v Mahoney itself revealed, the common law is relegated in favour of contract when they conflict on the subject[3]. Clearly, in the Chief Justice’s mind, the terms of the deed under consideration are paramount in determining this issue.
  4. [26]
    Here Clause 3.1(a) expressly states  the Indemnifying Parties provide an “unconditional and irrevocable” guarantee of due and punctual payment of the Secured Amounts to the Secured parties on demand by a Secured Party. Additionally Clause 3.1(b)(ii) expressly provides for recovery in respect of any loss “…suffered, paid or incurred by a Secured Party in relation to the non-payment of any Secured Sum”. Given the definition provided for a Secured Amount” there is no express or implied obligation upon the Plaintiffs to have previously paid the sum in respect to which claim is made under the Deed. In fact the Deed provides to the contrary.
  5. [27]
    Barwick CJ’s remarks accord with the observations of Lord Goff of Chievely in Firma C-Trade SA v Newcastle Protection & Indemnity Association [1991] 2 AC 1, a case referred to with approval in New Cap v A E Grant (supra) the other authority relied upon by the Defendants.  At [98] in New Cap White J referred to Lord Goff’s statement in Firm C-Trade at pages 35 to 36 where His Lordship said:

“I accept that, at common law, a contract of indemnity gives rise to an action for unliquidated damages, arising from the failure of the indemnifier to prevent the indemnified person from suffering damage, for example by having to pay a third party.  I also accept that, at common law, the cause of action does not (unless the contract provides otherwise) arise until the indemnified person can show actual loss.  This is, as I understand it, because a promise of indemnity is simply a promise to hold the indemnified person harmless against a specified loss or expense.  On this basis, no debt can arise before the loss is suffered or the expense incurred; however, once the loss is suffered or the expense incurred, the indemnifier is in breach of contract for having failed to hold the indemnified person harmless against the relevant loss or expense.  There is no condition of prior payment but the remedies available at law (assumpsit for damages, or possibly in certain circumstances the common count for money paid) were not efficacious to give full effect to the contract of indemnity.  It is for this reason that equity felt that it could, and should, intervene.  If there had been a clear implied condition of prior payment, operable in the relevant circumstances, equity would not have intervened to enforce the contract in a manner inconsistent with that term.  Equity does not mend men’s bargains; but it may grant specific performance of a contract, consistently with its terms, where the remedies at law are inadequate.”

(Citations omitted and emphasis mine)

  1. [28]
    New Cap is a case which considered indemnity clauses in the context of an insurer’s rights upon a contract of indemnity. White J, like Barwick CJ, noted the general principle and the weight of authority that “…a cause of action by an insured or a reinsured under a policy of indemnity insurance … is a cause of action for unliquidated damages and not debt”.[4] However he continued, “…there is no warrant for assuming that all contracts of indemnity insurance are to the same effect.”[5] In other words each situation will depend upon the agreement under consideration. In his judgment White J also noted with approval the observations of the Court of Appeal in Jervis v Harris [1996] Ch 195 as cited in Cigna Insurance Asia Pacific ltd v Packer (2000) 23 WAR 159, that “…there may be a claim for a liquidated sum even though the sum is not fixed by contract. It is enough that it is ascertainable without the need for assessment, at the time payment is due.”[6] The primacy of the arrangement under consideration appears well accepted. See for instance Langford Concrete Pty ltd v Finlay [1978] 1 NSWLR 14 at 17.
  2. [29]
    The answer to the Defendants’ contention is to be found in the terms of the Deed.  The Secured Amounts secure all “current and future costs, debts and liabilities” of the, inter alia, the Plaintiffs, in relation to the Projects, “irrespective of whether the costs, debts or liabilities are actual, prospective, contingent or otherwise”.  By Clause 3.1(a) the defendants (except Hallinan) “unconditionally and irrevocably guarantee(d) to each of the Secured Parties on demand by a Secured Party the due and punctual payment of the Secured Amount”. The terms of Clause 3.1(a) give effect to what has been characterised as a “redress loss” by Zakjewski; that is the clause provides an express contractual duty to pay money to compensate for loss suffered once harm has been sustained by its expression that the Defendants “…unconditionally and irrevocably indemnify …[the Plaintiff] against …any loss…suffered, paid or incurred by [the Plaintiffs] in relation to the non-payment of any Secured Amount.”.  Given the terms of the Deed the right to indemnity in this instance gives rise to a primary right to compensation for loss, enforceable as a debt; Jervis v Harris [1996] Ch 195 at 202 – 3.
  3. [30]
    If the Deed did not constitute a guarantee but instead provided an indemnity then it was, in my view, a “redress loss”[7] agreement and accordingly supports a debt claim upon the plaintiffs incurring the legal liability. It was not a “prevent loss” arrangement as might be inferred from the defendants’ contentions.
  4. [31]
    Given the Deed, the situation here is analogous to the situation governing the position of unconditional performance guarantees. They have been likened to irrevocable letters of credit or promissory notes payable on demand.  See R.D. Harbottle (Mercantile) United v National Westminster Bank Limited [1978] 1 QB 146 at 150: Edward Owen Engineering Limited v Barclays Bank International Limited [1978] 1 QB 159 at 170-171.
  5. [32]
    In my view the indemnity is enforceable irrespective of the absence of payment by the Builder.

Defects claims

  1. [33]
    The Defendants contend that no amounts are recoverable in respect of amount paid in respect of defects. They submit that to permit recovery for such amounts would reward the Plaintiffs for their own misfeasance. Respectfully that is not to the point. Given the context in which the Deed came into being and the particular provisions expressly recognising that defects costs are included in the definition of Secured Amounts the submission is contrary to the terms of the Deed and such claims are allowed in the Schedule ‘A’. However consistent with Clause 3.1 no amount is recoverable against the first defendant in respect of any defect claim pursuant to the Deed.

Not a Secured Amount

  1. [34]
    The Defendants contend a number of items claimed do not fall within the definition of a Secured Amount. The definition of Secured Amount is broad and captures all of the claims allowed except the claim concerning PAYG Liability for Kerrod Thompson’s unpaid long service leave. Beyond the broad statement that the amount is related to the Projects there is no particularisation addressing that part of the claim attributable to the Projects especially given the change of employers for Thompson during the course of his employment by Woodward and his building entities. The matter will have to  be resolved at trial and is not allowed for in Schedule ‘A’. Additionally I have disallowed a number of small amounts concerning which the basis for claim is a bare assertion.

Conclusion

  1. [35]
    The Plaintiffs seek summary judgment in respect to a money claimed pursuant to a deed of guarantee and indemnity. The deed was a bespoke instrument mindfully drafted in the context of the commercial arrangements between the Plaintiffs and Defendants. It contained an unusually wide definition of Secured Amounts but which breath was understandable in context. The Defendants challenged the claim principally on the basis that the amounts claimed had not been adequately particularised, that amounts claimed had not been paid by the Plaintiffs, that the amounts claimed included claims for defects and that otherwise amounts claimed were not Secured Amounts within the definition provided for in the Deed. There are issues for determination at trial concerning the unparticularised amounts claimed and judgment is refused in respect of those amounts. However with the exceptions noted in the Schedule attached to this judgment and explained above the Plaintiffs are entitled to judgment against the first defendant for $266,862.18. In determining that sum I have found that all defects claimed but one are subject to assessment at trial because of a lack of particularisation. Otherwise the Plaintiffs are entitled to judgment against the second, third and fourth defendants in the sum of $268,523.18.

Orders

  1. That judgment be entered for the Plaintiffs against the first defendant in the sum of $266,862.18.
  2. That judgment be entered for the Plaintiffs against the second and third defendants in the sum of $268,523.18.
  3. Unless application is made for other orders within 14 days of today’s date; order Defendants pay the Plaintiffs’ costs of and incidental to the application to be assessed on the standard basis and that such costs be the Plaintiffs’ costs in the cause in any event.

Description of creditor / Secured Amount

Total invoiced amount

Addressee

Why Plaintiff/s are liable for cost

Amount Due (as at 12 August 2021)

Supporting documents

Defendants' claim

Amount allowed

WHITE DAWN - NON - DEFECT RELATED SECURED AMOUNTS

 

 

Stoddart SEQ

$254.05

Charlie Woodward Builder Pty Ltd

Project related cost incurred by Charlie Woodward Builder Pty Ltd.

$254.05

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

Invoice 544070 dated 18.10.2019

PO Box 3292

Invoice

 

 

Paid by Charlie Woodward Builder Pty Ltd

WEST END, QLD 4101

Page 21

 

 

1&3 – Norman 21 July [8]

 

Bank statement

 

 

 

 

Page 22

 

 

Queensland Urban Utilities

$2,321.98

JHCW Sylvan Land Pty Ltd

Project related cost incurred by BPM Built Brisbane Pty Ltd.

$2,321.98

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not paid

$      2,321.98

Bill number 1016 8332 155 dated 15.01.2020

C/- BPM Built Brisbane

Invoice

 

 

2&4- Norman 21 July [8]

PO Box 3292

Pages 23 to 24

 

 

 

WEST END QLD 4101

 

 

 

Q Leave

$19,204.00

BPM Built Brisbane Pty Ltd

Project related construction cost incurred by BPM Built Brisbane Pty Ltd

$19,204.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not paid

$    19,204.00

Invoice 92103

$127.00

PO Box 292 Paddington 2064

$127.00

Invoices

Not paid

$          127.00

Invoice 98873

 

 

 

Pages 25 to 26

 

 

2- Norman 21 July [8]

 

 

 

 

 

 

WHITE DAWN - DEFECT RELATED SECURED AMOUNTS

 

 

Inspired Building

$385.00

BPM

Project defect related cost incurred by BPM Built Brisbane Pty Ltd.

$385.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

INV-715 - day work claim

Sam Fisher

Invoice

 

 

1 &3 Norman 21 July [8]

Level 1, 24 Bank Street, West End Qld 4101

Page 27

 

 

Schindler Lifts Australia Pty Ltd Inv 043833479

$638.00

BPM Built Brisbane Pty Ltd

Project defect related cost incurred by BPM Built Brisbane Pty Ltd

$638.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [8]

Level 1, 24 Bank Street West End 4101

Invoice

 

 

 

 

Page 28

 

 

HIGHLINE - DEFECT RELATED SECURED AMOUNTS

 

 

Bunnings Warehouse Tax invoice for 2 x saws dated 03.11.2020 - Paid by Charlie Woodward Builder

$135.90

N/A

Project defect related cost incurred by Kerrod Thompson and paid by Charlie Woodward Builder Pty Ltd.

$135.90

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

Tax invoice for tarpaulins and rope dated 29.10.2020 - Paid by Charlie Woodward Builder

$131.03

$131.03

Receipts

Not Particularised

$                   -  

1 &3 Norman 21 July [9] Not referred to in 13 August

 

 

Pages 34 to 35

 

 

 

 

 

Bank statements

 

 

 

 

 

Pages 36 to 37

 

 

Tooezy Plaster (Highline defect work - Plaster repairs level 8)

$236.09

Fortitude Homes

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd.

$236.09

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice TI2019FORT002 dated 29.11.2019 - Paid by Charlie Woodward Builder

24 Bank Street

Invoice

 

 

1 &3 Norman 21 July [9] Not referred to in 13 August

South Brisbane Qld 4101

Page 38

Not Particularised

$                   -  

 

Charlie Woodward Builder Pty Ltd

Bank transfer

 

 

 

 

Page 39

 

 

Labour (26/06/2020 - Highline roof top defects - 3 x staff) - Paid by Charlie Woodward Builder

$341.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd.

$341.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

1 &3 Norman 21 July [9]

Labour invoices

Not Particularised

$                   -  

 

Pages 40 to 41

 

 

 

Bank statement

 

 

 

Page 42

 

 

Bunnings (Tile balcony sealing repair)

$121.44

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd.

$121.44

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice 8066/00235163 dated 06.08.2020 - Paid by Fortitude Homes

24 Bank Street

Invoice

 

 

1 &3 Norman 21 July [9] Not referred to in 13 August

West End Qld 4101

Page 43

Not Particularised

$                   -  

 

 

Remittance advice

 

 

 

 

Pages 44 to 45

 

 

 

 

Bank statement

 

 

 

 

Pages 44 to 46

 

 

Stoddart Cladding Systems (Highline defects - Level 8 hallway ceiling repairs)

$3,135.00

BPM Built Brisbane

Project defect related cost incurred by BPM Built Brisbane Pty Ltd.

$3,135.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice LU7921 - Paid by Fortitude Homes

Invoice

Not Particularised

$                   -  

1 &3 Norman 21 July [9] Not referred to in 13 August

Page 47

 

 

 

Bank statement

 

 

 

Pages 48 to 50

 

 

AiroGroup (defect cost - skirting boards and paint in laundry)

$770.00

BPM Corp

Project defect related cost incurred by BPM Built Brisbane Pty Ltd.

$770.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice number INV-0265 dated 29.07.2020

24 Bank Street

Invoice

Not Particularised

$                   -  

1 &3 Norman 21 July [9] Not referred to in 13 August

West End QLD 4101

Page 51

 

 

Peter Trubai Highline 20.5 hours labour 19 November 2020 - Paid by Charlie Woodward Builder Pty Ltd

$1,353.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$1,353.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Invoice

 

 

 

Page 52

 

 

 

Proof of payment

 

 

 

Page 53

 

 

Jesse Josephs Highline 6 hours labour 19 November 2020 - Paid by Charlie Woodward Builder Pty Ltd

$767.25

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$767.25

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Invoice

 

 

 

Page 54

 

 

 

Time sheets

 

 

 

Page 55

 

 

 

Proof of payment

 

 

 

Page 56

 

 

Kerrod Thompson Highline 40.5 hours labour 19 November 2020 - Paid by Charlie Woodward Builder Pty Ltd

$2,673.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$2,673.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

1 &3 Norman 21 July [9]

Invoice

Not Particularised

$                   -  

 

Page 57

 

 

 

Timesheets

 

 

 

Pages 58 to 59

 

 

 

Proof of payment

 

 

 

Page 60

 

 

Peter Trubai Highline 6 hours labour 30.11.2020 Note: amended to reflect correct invoice date- Paid by Charlie Woodward Builder Pty Ltd

$396.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$396.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Invoice

 

 

 

Page 61

 

 

 

Bank statement

 

 

 

Page 62

 

 

Jesse Josephs Highline 6 hours labour 29.11.2020 Note: amended to reflect correct invoice date - Paid by Charlie Woodward Builder Pty Ltd

$316.80

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$316.80

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Invoice

 

 

 

Page 63

 

 

 

Timesheets

 

 

 

Pages 64 to 65

 

 

 

Bank statement

 

 

 

Page 66

 

 

Kerrod Thompson Highline 1 hour labour 03.12.2020 - Paid by Charlie Woodward Builder Pty Ltd

$66.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$66.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Invoice

 

 

 

Page 67

 

 

 

Timesheets

 

 

 

Pages 68 to 69

 

 

 

Bank statement

 

 

 

Page 70

 

 

Bunnings - related to roof top leaks

$9.85

N/A

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$9.85

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Kerrod Thompson expense 3 December 2020 Note: amended to reflect correct invoice date - Paid by Charlie Woodward Builder Pty Ltd

Receipt

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Page 75

 

 

 

Bank statement

 

 

 

Page 76

 

 

Bunnings - related to roof top leaks

$32.09

N/A

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$32.09

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Kerrod Thompson expense 11 November 2020 - Paid by Charlie Woodward Builder Pty Ltd

Receipt

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Page 77

 

 

 

Bank statement

 

 

 

Page 78

 

 

 

Accounting journal

 

 

 

Page 79

 

 

Bunnings - related to roof top leaks

$105.32

N/A

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd

$105.32

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Kerrod Thompson expense 11 November 2020 - Paid by Charlie Woodward Builder Pty Ltd

Receipt

Not Particularised

$                   -  

1 &3 Norman 21 July [9]

Page 80

 

 

 

Bank statement

 

 

 

 

 

 

 

Page 81

 

 

BLACK FOLD - DEFECT RELATED SECURED AMOUNTS

 

 

Tile City

$132.00

Fortitude Homes

Project defect related cost incurred and paid by Fortitude Homes.

$132.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice 611326 dated 03.07.2020 (Rectification works)- Paid by Fortitude Homes

PO Box 3292

Invoice

Not Particularised

$                   -  

1 &3 Norman 21 July [10]

West End Q 4101

Page 91

 

 

 

 

Accounting journal

 

 

 

 

Page 92

 

 

Active Building

$396.00

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd.

$396.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice 22835 dated 09.06.2020 (Hebel wall repairs sealing paint) - Paid by Charlie Woodward Builder Pty Ltd

Invoice

Not Particularised

$                   -  

 

Page 93

 

 

1 &3 Norman 21 July [10]

Proof of payment

 

 

 

Pages 94 to 95

 

 

 

Bank statement

 

 

 

Page 96

 

 

Labour - Jesse Joseph (12.08.2020 - 8.5 hours - assist AC Tundish defect work) - Paid by Charlie Woodward Builder Pty Ltd

$382.50

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd.

$382.50

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

 

Timesheet

Not Particularised

$                   -  

1 &3 Norman 21 July [10]

Pages 97 to 98

 

 

 

Invoice for labour

 

 

 

Page 99

 

 

 

Bank statement

 

 

 

Page 100

 

 

Bunnings

$519.86

Charlie Woodward Builder Pty Ltd

Project defect related cost incurred by Charlie Woodward Builder Pty Ltd and paid by Fortitude Homes.

$519.86

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

Invoice 8181/01350802 dated 11.08.2020 (AC tundish repair work) - Paid by Fortitude Homes

$541.18

24 Bank Street

$541.18

Remittance advice

Not Particularised

 

Invoice 8171/0132185 dated 07.08.2020 (AC tundish repairs) - Paid by Fortitude Homes

$95.02

West End Qld 4101

$95.02

Pages 101 to 102

Not Particularised

$                   -  

Invoice 8182/01338024 (Hebel defect repairs) - Paid by Fortitude Homes

 

 

 

Bunnings Invoice

 

 

 

 

 

 

Pages 103 to 105

 

 

1 &3 Norman 21 July [10]

 

 

 

Fortitude Homes Invoice

 

 

 

 

 

 

Page 106

 

 

 

 

 

 

Bank statement

 

 

 

 

 

 

Page 107

 

 

Labour for AC tundish viewing panel install on 12.08.2020 for 7.5 hrs x 2 - Paid by Fortitude Homes

$337.55

Fortitude Homes

Project defect related cost incurred and paid by Fortitude Homes.

$337.55

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not Particularised

$                   -  

 

$300.00

$300.00

Invoice

Not Particularised

$                   -  

1 &3 Norman 21 July [10]

 

 

Page 108

 

 

 

 

 

Payroll Advice

 

 

 

 

 

Pages 109 to 110

 

 

 

 

 

Bank statement

 

 

 

 

 

Pages 111 to 113

 

 

Stoddart SEQ Pty Ltd

$1,661.00

BPM Built Brisbane

Project defect related cost incurred by BPM Built Brisbane Pty Ltd and paid by Fortitude Homes.

$1,661.00

Affidavit of Charles Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice SQ573741 (defects - capping to bin chutes) - Paid by Fortitude Homes

Invoice

Defect claim

$      1,661.00

Norman 21 July [10] & 13 August [9]

Page 114

 

 

 

Bank statement

 

 

 

Pages 115 to 117

 

 

Inspired Building

$471.90

BPM

Project defect related cost incurred by BPM Built Brisbane Pty Ltd and paid by Fortitude Homes.

$471.90

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice INV-681 - Paid by Fortitude Homes

Sam Fisher

Invoice

 

 

 

Level 1, 24 bank Street, West End Qld 4101

Page 118

Not Particularised

$                   -  

1 &3 Norman 21 July [10]

 

Accounting journal

 

 

 

 

Page 119

 

 

APS (external painting)

$385.00

Charlie Woodward Builders

Project defect related cost incurred and paid by Charlie Woodward Builder Pty Ltd.

$385.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not particularised

$                   -  

Invoice 23.11.2020 - Paid by Charlie Woodward Builder

$385.00

Attn. Charlie Woodward

$385.00

Invoice

Not particularised

$                   -  

Invoice 26.11.2020 - Paid by Charlie Woodward Builder Pty Ltd

 

 

 

Pages 120 to 121

 

 

 

 

 

 

Bank statement

 

 

1 &3 Norman 21 July [10]

 

 

 

Page 122

 

 

ESCENT - DEFECT RELATED SECURED AMOUNTS

 

 

Tooezy Plaster

$236.09

Fortitude Homes

Project defect related cost incurred by Fortitude Homes and paid by Charlie Woodward Builder Pty Ltd.

$236.09

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Invoice TI2019FORT002 (Defect work - repair ceilings) - Paid by Charlie Woodward Builder Pty Ltd

24 Bank Street

Invoice

Not particularised

$                   -  

 

South Brisbane QLD 4101

Page 123

 

 

1 &3 Norman 21 July [10]

 

Accounting journal

 

 

 

 

Page 124

 

 

PROJECTS GENERALLY - NON - DEFECT RELATED SECURED AMOUNTS

 

 

Commonwealth Bank of Australia

$5,605.72 per month

BPM Built Brisbane Pty Ltd

Project related overhead incurred by BPM Built Brisbane Pty Ltd and partly paid by Charlie Woodward Builder Pty Ltd. Two repayments paid by Charlie Woodward Builder Pty Ltd. Remaining payout invoiced to BPM Built Brisbane Pty Ltd.

 

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Crane lease finance

$147,114.93 (Commonwealth Bank of Australia)

Equipment Loan Schedule

Not paid

$  110,347.62

$5,605.72 per month from October 2020 to April 2023.

 

Pages 125 to 133

 

 

2 - Fogarty 21 July [8]

 

Terms and Conditions for Business Finance

 

 

 

 

Pages 134 to 164

 

 

 

 

Accounting journal

 

 

 

 

Page 165

 

 

 

 

Payout of agreement

 

 

 

 

Pages 166 to 167

 

 

Linkt/Go Via (toll charges Kerrod Thompson tag ID 18340212960)

 

Charlie Woodward Builder Pty Ltd

Project related overhead cost incurred and paid by Charlie Woodward Builder Pty Ltd.

$62.21

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not a Secured Amount

$                   -  

January 2020 invoice ending 4926 - Paid by Charlie Woodward Builder Pty Ltd

$62.21

$128.40

Account statement [$128.40]

Not a Secured Amount

$                   -  

February 2020 invoice ending 7869 - Paid by Charlie Woodward Builder Pty Ltd

$128.40

 

Pages 168 to 170

 

 

4—Fogarty 21 July [8]

 

 

Account statement [$62.20]

 

 

 

 

 

Pages 171 to 173

 

 

Optus

 

Charlie Woodward Builder Pty Ltd

Project related overhead cost incurred and paid by Charlie Woodward Builder Pty Ltd.

$162.49

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not a Secured Amount

$                   -  

Dec 2019 to Jan 2020 invoice ending 3287 - Paid by Charlie Woodward Builder Pty Ltd

$162.49

$43.95

Bill summary

Not a Secured Amount

$                   -  

Jan to Feb 2020 invoice - Paid by Charlie Woodward Builder Pty Ltd

$43.95

 

Pages 174 to 220

 

 

4—Fogarty 21 July [8]

 

 

Invoice

 

 

 

 

 

Page 221

 

 

 

 

 

Bank statement

 

 

 

 

 

Page 222

 

 

Australian Taxation Office

$78,061.69

BPM Built Brisbane Pty Ltd

Project related cost incurred by BPM Built Brisbane Pty Ltd and paid by Charlie Woodward Builder Pty Ltd.

ATO payment plan totals $82,918.05

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

Superannuation for 2019 to 2020 inclusive of superannuation guarantee charges

less payment of $5,000.00

Payroll activity

Not paid

$    77,918.05

2—Fogarty 21 July [8]

= $77,918.05

Page 223

 

 

Brisbane Builders Pty Ltd ATF

$50,050.00

BPM Built Brisbane Pty Ltd 24 Bank Street, West End QLD 4101

Project related cost incurred by BPM Built Brisbane Pty Ltd.

$50,050.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

Not paid

$    50,050.00

Crane storage and relocation of crane

Invoice

 

 

2—Fogarty 21 July [8]

Page 224

 

 

KERROD THOMPSON - PAYG TAX LIABILITY

 

 

Australian Taxation Office

N/A

N/A

Project related overhead cost incurred by BPM Built Brisbane Pty Ltd.

$13,900.00

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

 

PAYG Liability for Kerrod Thompson's unpaid long service leave

Payroll advices for Mr Thompson

Not a Secured Amount

$                   -  

4—Fogarty 21 July [8] &  13 August[7]-[8]

Pages 226 to 229

 

 

 

Year-to-date Payroll Report for BPM Built Brisbane

 

 

 

Page 230

 

 

 

Payroll Activity Summary for Kerrod Thompson Pages 231 to 233.

 

 

RETENTIONS

 

 

Paz Stone (in liq)

$8,893.50

BPM Built Brisbane Pty

Retention for White Dawn Project

$6,893.53

Affidavit of Charles Stoddart Woodward sworn 6 July 2021 exhibit "CSW-2"

 

$      6,893.53

Claim to have agreed to lesser amount with liquidators

Invoice

 

 

 

915 to 916

 

$  268,523.18

Footnotes

[1]All bolded terms are defined in the Deed.

[2]Zakrewski, R ‘The Nature of a Claim on an Indemnity’ (2006) 22 Journal of Contract Law 54 at 59

[3]Wren v Mahoney [1972] 126 CLR 212 at 229

[4]New Cap Reinsurance Corporation Limited in Vic (in liq) & Anor v A E Grant & Ors (2008) 68 ACSR 176 at 108

[5]At 109

[6]At 106

[7]Zakrewski, R ‘The Nature of a Claim on an Indemnity’ (2006) 22 Journal of Contract Law 54 at 59

Close

Editorial Notes

  • Published Case Name:

    Woodward & Ors v Hallinan & Ors

  • Shortened Case Name:

    Woodward v Hallinan

  • MNC:

    [2021] QDC 218

  • Court:

    QDC

  • Judge(s):

    Burnett AM, DCJ

  • Date:

    10 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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