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Starline Interiors Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd[2025] QDC 63

Starline Interiors Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd[2025] QDC 63

DISTRICT COURT OF QUEENSLAND

CITATION:

Starline Interiors Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd [2025] QDC 63

PARTIES:

STARLINE INTERIORS PTY LTD

(ACN 617887297)

(applicant)

v

TOMKINS COMMERCIAL AND INDUSTRIAL BUILDERS PTY LTD

(ACN 061732778)

(respondent)

FILE NO/S:

BD372/25

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

11 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2025

JUDGES:

Kent KC DCJ

ORDER:

  1. The Respondent pay the Applicant $191,287.70 inclusive of (a) GST and (b) $14,212.75 on account of interest to and including 10 April 2025.
  2. The Respondent’s cross application is dismissed.
  3. The Respondent pay the Applicant’s costs of both proceedings as agreed or assessed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – RENUMERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PAYMENT CLAIMS – where the applicant entered into a subcontract with the respondent for the applicant to install plasterboard walls and ceilings, supply and install fire rated walling systems and undertake carpentry work – where the applicant issued a payment claim under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the respondent issued a payment schedule in response – where the respondent partially paid the applicant in respect of the payment schedule – whether the payment claim is defective under the requirements of s 68 of the Act – where the respondent argues that the notice of intention to start proceedings is deficient under s 99 of the Act – where the applicant argues that the payment schedule falls within the meaning of ‘certificate’ under the subcontract – where the respondent seeks to set off monies owed under the subcontract – where the respondent applies for injunctive relief or stay – whether injunctive relief is justified

Acts Interpretation Act 1954 (Qld), s 48A

Building Industry Fairness (Security of Payment) Act 2017 (Qld), ss 3, 68, 76, 77, 78, 99, 100

District Court of Queensland Act 1967 (Qld), ss 68, 69

Uniform Civil Procedure Rules 1999 (Qld), r 800

Iris Broadbeach Business Pty Ltd (as trustee for Iris Broadbeach Business Trust) v Descon Group Australia Pty Ltd [2024] QSC 16

Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290

KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd [2019] QSC 178

Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA Pty Ltd) & Ors [2007] QSC 333

MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd [2024] QCA 94

Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2009] QSC 376

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355

Re Galaxy Investments (Qld) Pty Ltd [1993] QSC 231

T & M Buckley Pty Ltd v 57 Moss Road Pty Ltd [2010] QCA 381

Taringa Property Group Pty Ltd v Kenik Pty Ltd [2024] QSC 298

Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

COUNSEL:

M Walker for the applicant

C Humby for the respondent

SOLICITORS:

Shand Taylor Lawyers for the applicant

Thomson Geer for the respondent

Introduction

  1. [1]
    The applicant claims judgment in the sum of $177,074.95 (including GST) pursuant to s 78(2) of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (the BIF Act). This is said to be a sum owed as a debt arising pursuant to the BIF Act alternatively it is claimed as a progress payment under a subcontract.

Background

  1. [2]
    The respondent is a builder who at the relevant time was undertaking works on a high rise project at Main Beach in Queensland. On 10 November 2023, the respondent, as head contractor and the applicant, as subcontractor entered into a subcontract for the applicant to install plasterboard walls and ceilings, supply and install fire rated walling systems and undertake general carpentry work (the subcontract). On 25 July 2024, the applicant issued the respondent a payment claim for $681,035.62 (including GST) (the payment claim). On 8 August 2024, the respondent, pursuant to the procedures in the BIF Act, issued a payment schedule certifying $542,074.95 (including GST) as being owing pursuant to the claim (the payment schedule). Subsequently between 13 September and 13 December 2024, the respondent paid to the applicant $365,000.00 (including GST) in respect of the payment schedule, leaving the balance owing.
  2. [3]
    The application was filed on 14 February 2025 and various supporting affidavits were filed. The respondent filed a cross application on 27 March 2025 seeking an interlocutory injunction restraining the applicant from enforcing the alleged debt, either under the BIF Act or under the contract, alternatively a stay of proceedings. This comes about because the respondent, who resists the application for a number of reasons, also now asserts various set offs which it argues has the effect of extinguishing any debt claimed by the applicant.

The issues

Validity of payment claim

  1. [4]
    The applicant submits that it may recover under the statutory remedies in s 78 of the BIF Act, alternatively as a contractual claim under Clause 37.2 of the subcontract. Section 78 is in Chapter 3 of the BIF Act, Progress Payments, and Part 3 thereof, Claiming Progress Payments. It applies to the situation where a respondent has not paid a payment claim for a progress payment in full on or before the due date and refers to an “amount owed”. This is defined in subsection (5) as including the situation where a respondent responds to a payment claim with a payment schedule as required by s 76 – the scheduled amount becomes an amount owed. Section 76(3) of the BIF Act provides that where the respondent gives the claimant a payment schedule, it must pay the claim and the amount proposed in the payment schedule no later than the due date for the relevant progress payment to which the schedule relates. That is, it creates a debt which may be recovered.
  2. [5]
    The BIF Act has the main purpose of helping people working in the building and construction industry in being paid for their work; s 3(1). Section 3(2) sets out that the main purpose is to be achieved primarily by inter alia:

“(b)  granting an entitlement to progress payments, whether or not the relevant contract makes provision for progress payments; and

(c)  establishing a procedure for –

  1. making payment claims; and
  1. responding to payment claims; and…
  1. the recovery of amounts claimed…”
  1. [6]
    Despite the respondent making the payments on the payment schedule listed above (in response to the payment claim which it apparently regarded at that stage as valid), it has more recently taken the stance that there are defects in the payment claim under the BIF Act such that the claim is not maintainable, and the application should fail. The problems are said to be a failure to identify the construction work, or related goods and services in the payment claim, contrary to s 68(1)(a) of the Act; failure to request payment of the claimed amount as required by s 68(1)(c); and breach of the pre-commencement requirements in s 99.
  2. [7]
    The nature of the statutory remedies contained in the BIF Act (and indeed, in previous iterations thereof) has been the subject of comment and analysis. In MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd [2024] QCA 94 (“MWB”) at [7] Dalton JA said:

“Sections 68 and 78 of the BIFA (set out above) mean that the builder’s entitlement to progress payments under the Act depends upon the builder giving a payment claim as defined. It has been remarked in the case law that analogous provisions give a builder an entitlement which is extra-contractual, and which depends upon compliance with the relevant legislation.”

Thus compliance with the legislation is required, to avail the applicant of its assistance. The applicant builder in MWB (who was in the equivalent position to the applicant subcontractor here) was unsuccessful in that case where non-compliance was found. I will deal with the challenges to the validity of the present payment claim separately as follows.

Identification of construction work, or related goods and services – s 68(1)(a)

  1. [8]
    As to the first of these issues, the applicant submits that the claim was properly made under the app nominated by the respondent (the “Payapps” system) for payment arrangements pursuant to the subcontract. Further, the appropriate details identifying the relevant matters were given. This proposition is evidenced by both the nature of the claim including the details given and the fact that the respondent could and did assess the payment claim, with sufficient particularity that it was able to respond with the revised amount in the payment schedule, the relevant details being identified and justified. Further, as outlined above, the payment schedule was paid in part.
  2. [9]
    In MWB it was concluded that the relevant payment claim did not meet the requirement in s 68(1)(a) of the BIF Act to identify the construction work. Dalton JA referred to T & M Buckley Pty Ltd v 57 Moss Road Pty Ltd [2010] QCA 381 wherein at [38] Philippides J said that the issue for determination was:

“… not whether the payment claim explained in every respect the means by which a particular claim item had been calculated, but whether the relevant construction work or related goods and services was sufficiently identified … That is, whether the payment claim reasonably identified the construction work to which it related such that the basis of the claim was reasonably comprehensible to the applicant.”

The applicant submits this standard is met here – the basis of the claim was reasonably comprehensible – particularly where the respondent was able to comprehend the claim to the extent that it was able to respond with a payment schedule as outlined. This is simply evidence that the payment claim sufficiently identified the relevant matters – it does not, for example, give rise to contractual concepts such as a waiver, as pointed out in MWB at [26]. It is also not relevant that previous claims in the same form had been paid (or, presumably, that the present claim was paid in part); although the background of each of the parties “derived from their past dealings and exchanges of documentation” is to be taken into account: MWB at [24]; Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2009] QSC 376 at [25]. The question is whether the claim, objectively viewed, meets the statutory definition. The applicant submits that the respondent’s ability to formulate the payment schedule in response is evidence of that proposition, supporting the relevant finding.

  1. [10]
    It is noteworthy that in MWB the principal contractor treated a later claim of 17 July 2023 – but not, apparently, the disputed one of 30 June – as a valid payment claim and responded with payment schedules. This is a distinction from the present case, where the disputed claim was initially treated as a valid payment claim and responded to. In KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd [2019] QSC 178 ("KDV”) the disputed claim was responded to by a payment schedule, but with a concurrent denial that it was a proper claim and a reservation of the payer’s rights. Both of those cases thus differ factually from the present. The issue in MWB was that if the 30 June documents were in fact a payment claim, the payment schedule (responding to the 17 July claim) would have been issued out of time, which has consequences under the statutory scheme.

Documentation considered in MWB

  1. [11]
    In MWB the claim under consideration was the email of 30 June 2023 which did provide some relevant details. It attached “Claim 17”, with a three-page spreadsheet headed with the builder’s name, titled “Project Summary” and with the words “Project Claim”. The project address and principal contractor were identified. A table listed 42 trades each of which had a contract value as a monetary sum in various amounts. There was a column headed “Previously Claimed” and another showing “% Complete”. There were various other details including a number of variations and a “Claim Summary”. Then against each trade was a monetary amount in a column headed “Current Claim” and finally a last column headed “Remaining Balance” with another monetary figure.
  2. [12]
    In a small box there was a “Claim Summary” showing a monetary amount against the description, contract works complete to the date of the document; there were further details including variations; and lastly an amount labelled “Amount Due This Claim”. There was a declared supporting statement of the kind contemplated by s 75(7) and (9) of the BIF Act as to payment of subcontractors.
  3. [13]
    MWB does not seem to have been a case where the parties agreed to and did submit claims and schedules using an agreed upon and presumably purpose – designed app; this may be an important difference.
  4. [14]
    The documentation was found not to sufficiently identify the construction work or related goods and services, as a matter of objective construction. Percentages of categories of work set out in a trade summary may be insufficient; see KDV. The problem in MWB was that in the context of a contract for 56 townhouses, that is 56 separate dwellings, it was all but meaningless to simply describe a completed percentage of trades such as concreting or plumbing (at [25]). More description was necessary to identify the relevant matters for the purpose of s 68(1)(a).

The Applicant’s submissions as to distinction between the present case and MWB

  1. [15]
    The applicant submits that in MWB there was no breakdown beyond trades and in the circumstances outlined above it is understandable that this was insufficient.  It was acknowledged in MWB that in certain factual circumstances a trade summary or trade breakdown might be sufficient (footnote 5); see also KDV at [41].  The applicant submits that properly understood, MWB is authority for the proposition that percentage claims on broad categories of trades (e.g., “concreting”) is insufficient, where such a claim does not properly identify the relevant matters.  What was criticised was the level of detail in the description of the claim rather than use of percentages per se. 
  2. [16]
    The factual matrix as related to the sufficiency of the claim in KDV resembled MWB: there was a “trade breakdown” with insufficient descriptions and provision of percentages did not assist in identifying the actual work done said to be within the claim; see KDV at [37].
  3. [17]
    By contrast, the applicant submits that the payment claim it has submitted in this case through the relevant app (again, the respondent’s chosen system which apparently embraces description by percentages) included a breakdown for each relevant level of the multi-storey project detailing:
    1. base building partitions;
    2. fit-out partitions;
    3. ceilings;
    4. speed panel; and
    5. carpentry.

Although percentages are referred to, the claim identified what was claimed and approved for “This Period” for each level of the building. As outlined above, the respondent was able to assess the payment claim and respond thereto.  Thus the payment claim is argued to be different from MWB where it was not possible to determine, for example, where the percentage of plumbing work was completed by reference to the 56 townhouses being constructed – the respondent would not know where to look to check the details.  Here the work was claimed by reference to each level and each distinct portion of work provided by the applicant. The respondent could and did meaningfully assess the claim and respond.

  1. [18]
    The payment schedule responded to the payment claim adopting the same quantification methodology on a line-by-line basis.  The response was on a level‑by‑level basis under the heading “Approved Claim Value” on the righthand side.  This is obviously said by the applicant to be relevant to an objective assessment of whether the claim reasonably described the works.  They are said by the applicant to be so well described that the respondent was able to schedule specific amounts against the claims.  The example given is that the claimant claimed 79 per cent of base building partitions were complete on levels 14 and 15, whereas the respondent scheduled 59 per cent.
  2. [19]
    I note that in this case, and possibly as a further distinction from MWB, it seems that the use of percentages was not only contemplated, but positively invited, by the use of the respondent’s chosen payment system, Payapps. Mr Knezevic, the applicant’s project manager, deposes that he entered the percentages into Payapps which then automatically calculated the relevant value consistently with the subcontract. The line items in Payapps were controlled by the respondent, including the description and subcontract value. The respondent’s payment schedule, like the payment claim also sent through Payapps, referred to it being issued under the BIF Act.

Conclusion as to s 68(1)(a) issue

  1. [20]
    Thus on the first issue the applicant argues that the payment claim sufficiently identified the construction work or related goods and services for the purposes of s 68(1)(a) of the BIF Act. Its basis was at the very least “reasonably comprehensible”. It is a factually different case from MWB or KDV, producing a different result.
  2. [21]
    In my conclusion this submission must be accepted. In the circumstances set out, my findings are that the payment claim did sufficiently identify the work or goods and services as required by s 68(1)(a) and thus the basis of the claim was reasonably comprehensible to the respondent, as shown by its detailed response using its own chosen system. The challenge to the payment claim on this aspect fails.

Failure to request payment of the claimed amount – s 68(1)(c)

  1. [22]
    As to the requirement of s 68(1)(c) of the BIF Act, the applicant was required by the subcontract to use Payapps.  It was required to input the values against each item of work claimed as described above and deposed to by Mr Knezevic.
  2. [23]
    In MWB the words “amount due this claim” were rejected as being a request for payment.  The phrase was held to be an identification by the builder of the progress payment which it claimed was payable but was not a request for payment under s 68(1)(c).  Had the document been headed “Invoice” rather than “Project Summary”, this would have been sufficient because of s 68(3) of the BIF Act.  No particular form of words is necessary (MWB at [35] referring to Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA Pty Ltd) & Ors [2007] QSC 333 at [20]) however something which amounts to a request for payment needs to be either express or necessarily and clearly implied.
  3. [24]
    The applicant submits that the payment claim in this case is different from MWB and meets the required test.  Its terms, on the first page, include the express description “payment claim” and it is said “the following payment claim has just been submitted by Erol Knezevic. This is a payment claim made under the Building Industry Fairness (Security of Payment) Act 2017” (emphasis added). Similar words, referring to a claim under the BIF Act, were not present in the 30 June claim in MWB but were present in the 17 July claim which was accepted as valid. 
  4. [25]
    The applicant’s payment claim identified the claimant’s details, the project details, the gross and net payment claimed, the respondent’s details and further payment claim details including the date of the claim and the period to which it relates.  There is, on the second page of the hard copy, a claimed contract summary including various tabulated items.  One column is headed “Completed this Period” and the total for that column is described as “Amount Due including GST”.  This is the amount of the claim.
  5. [26]
    The document then proceeds as described above under the various headings such as Base Building Partitions, separately identified for the various levels of the building from 1-39.  An important distinction from MWB is that the various levels are identified, in contrast to MWB where the various townhouses were not.
  6. [27]
    What is submitted by the applicant is that the terms of the document including the various portions outlined above amount to either an express or necessarily clearly implied request for payment of the “net payment claimed” of $681,035.62 (including GST).
  7. [28]
    The respondent submits that there was not a relevant request for payment by the payment claim.  It is said that there is no express request for payment nor a necessarily implied request.  It is common ground that the word “invoice” is not used, so s 68(3) is not activated.  As to the applicant’s reliance on the various expressions outlined above, it is argued that the references to “net payment claimed” and “amount due” are similar to the phrase “amount due this claim” which did not amount to a request for payment in MWB.

Discussion

  1. [29]
    In this context there has been some analysis of the requirement for a request for payment.  In Iris Broadbeach Business Pty Ltd (as trustee for Iris Broadbeach Business Trust) v Descon Group Australia Pty Ltd [2024] QSC 16 ("Iris Broadbeach”) Wilson J held at [139]-[141]:

“A ‘cumulative effect’ of surrounding statements could result in an implied request for payments.” 

The features referred to by Wilson J in that case included the title of the relevant document as a “Progress Claim”; the inclusion of the words “this month’s claim total progress claim value for the month”; “this progress claim is submitted under the Building Industry Fairness (Security of Payment) Act 2017” (which, as noted above, is present here but with the extra element of specifically referring to a “payment claim” as opposed to a “progress claim” in Iris Broadbeach) and the feature that the claim was accompanied by a statutory declaration from the managing director of the claimant stating that all the subcontractors were paid and stating that the declaration was made in connection with the payment of the progress claim.  Her Honour concluded that the cumulative effect of these matters including in particular the statement by the managing director, made it clear that the claim was a request for payment.

  1. [30]
    In Taringa Property Group Pty Ltd v Kenik Pty Ltd [2024] QSC 298, Hindman J said at [36]:

“Further, the court should be careful not to set the bar too high in assessing what is required by s 68(1): an overly stringent, technical or strict approach to construing a payment claim and its compliance with s 68(1) is not warranted.”

Further, at paragraphs [36]-[37], her Honour observed inter alia that, for s 68(1)(c), no formulaic words are required and the document is to be construed objectively as to whether it makes a request for payment of the claimed amount. There is no statutory requirement for a due date for payment to be expressly set out. Her Honour also referred to observations of Wilson J in Iris Broadbeach above.

I note that in MWB, Dalton JA at [36] commented that she was not persuaded by the analysis in Iris Broadbeach and that her Honour did not see any relevant distinction between the documents in MWB and those in Iris Broadbeach. Her Honour’s commentary (which may be an obiter dictum in that it does not seem to form part of the essential reasoning of the case) does not seem to mention that, unlike the 17 July documents, the challenged 30 June documents in MWB did not mention the claim being made under the BIF Act; something relied on in Iris Broadbeach (although not strictly required by the legislation). Thus, arguably there may have been a relevant distinction between the two cases, or at least, a distinction as to the relevance of which reasonable minds might differ. In any case, I do not understand MWB to contradict the authorities to the effect that the request for payment may be implied. Of course, the conclusion as to whether the implication should be drawn is fact specific and will vary from case to case. No formulaic words are required and the question is one of objective construction as mentioned in Taringa.

Conclusion re: s 68(1)(c)

  1. [31]
    My conclusion is that the cumulative effect of the various statements made in the payment claim as outlined above do result in at least a necessarily and clearly implied request for payment.  One feature giving rise to this conclusion is the express use of the description “payment claim”. Another is the use of the phrase “net payment claimed”.  The use of the past tense in “claimed” expresses that the claim for payment was made in the past – it is the past participle of the verb “claim” and in context is an adjective qualifying the noun “payment”, i.e. the payment referred to was one which had already been claimed. The claim for payment was made by the delivery of the payment claim document via the app.  By the time Mr Knezevic had submitted it, and the respondent became aware of it, the claim had already passed into the past tense; this happened as soon as he pressed “enter” or whatever other operation was necessary on the app.
  2. [32]
    The word “claim” can obviously be a noun, describing such things as the document under consideration, which in some of the above uses is clearly apposite.  However, the word is also used as a verb, the meaning of which includes:
    1. to demand by or as by virtue of a right;
    2. demand as a right or as due;
    3. to assert and to demand the recognition of (a right, title, possession, etc);
    4. assert one’s right to, for example to claim payment for services (emphasis added)

(this commentary is from dictionary.com; the Macquarie online dictionary is to similar effect)

The fact that the past participle “claimed” is clearly, in bold letters, used in the payment claim document in my view makes it clear that the net payment was either being contemporaneously or had already been claimed, that is, payment was requested.  The past participle is an adjective describing the net payment; that is, it was a net payment which had been claimed (i.e. requested).

Relevantly to the above discussion of the meaning of “claim”, “request” is defined as including to ask for or demand (as a verb) and as a noun is synonymous with “demand”. “Claim” is also synonymous with “demand”. The phrase “net payment claimed” is, in my conclusion, equivalent to “net payment requested”, that is, a request for payment.

This is a similar result, in a slightly different factual scenario, to Iris Broadbeach. The form of words in MWB was different and found to be an identification of a progress payment rather than a request for payment. The present case is in my conclusion different – for the above reasons there was at least a necessary and clearly implied request for payment.

  1. [33]
    This is further reinforced by the introductory words under the heading “Payment Claim”: “The following Payment Claim has just been submitted by Erol Knezevic”. The fact that the payment claim had been submitted was made expressly clear. In either sense – a claim already submitted or being made contemporaneously – it amounted to a request for payment.  As in Iris Broadbeach, the cumulative effect of the relevant matters makes it clear that the payment claim was a request for payment, claiming payment for construction work or related goods and services; it clearly expressed that the action of claiming had been completed by the applicant and thus payment of the claim was requested. Indeed, in my conclusion the request for payment in the context of the language used was express; but if not, it is certainly clear as a matter of necessary and clear implication that the expressly named payment claim was a request for payment.

Conclusion re: validity of payment claim according to the requirements of s 68

  1. [34]
    My conclusion is that for the above reasons the payment claim referred to by the applicant was an effective payment claim pursuant to s 68 and the BIF Act generally.

Pre commencement requirements

  1. [35]
    Section 99 of the BIF Act provides in subsection (1) that if:

“(a) after being given a payment claim, the respondent fails to pay the amount stated in the claim on or before the due date for the progress payment to which the claim relates; and

  1. because of a failure to pay, the claimant intends to start proceedings in a court to recover the unpaid portion of the amount owed to the claimant”

Subsection (2) requires a claimant, before taking the intended action, to give the respondent a written notice (a warning notice) in the approved form of the intention to start the proceedings.

Respondent’s arguments: s 99 not strictly complied with

  1. [36]
    What is said by the respondent in this regard is that the Section 99 Notice which was issued 30 September 2024 in the approved form was deficient in that it refers to a payment claim dated 25 July 2024 in the amount of “$542,074.95 (including GST)” (i.e. an adjusted amount adopting the figure in the payment schedule).  The payment claim of that date, as outlined above, referred to $681,035.62.  Thus the Section 99 notice did not refer to the payment claim, or, so it is argued, any payment claim.  The respondent argues that strict compliance with the legislation was required and thus there was no entitlement for the applicant to commence recovery proceedings because of the different lesser figure.  The result is that proceedings lack a necessary precondition and should be struck out.

The applicant: s 99 does not apply

  1. [37]
    In response, the applicant argues that the relevant notice requirement only arises if the cause of action relates to the respondent’s failure to pay the amount stated in the progress claim (not the payment schedule, which is not referred to in s 99).  That is, it only applies to the situation where no payment schedule has been given under s 76 which creates a debt for the amount claimed pursuant to s 77(2).  Section 76(3) creates an enforceable debt following the delivery of a payment schedule whereas s 77 only applies to the situation where a payment schedule has not been given in response to a payment claim as required by s 76.  Thus the applicant argues that there is no alleged failure to “pay the amount stated in the claim” according to s 99(1)(a).  Rather, the failure is by the respondent to pay the amount in the respondent’s own payment schedule; that is, the debt which is created by the operation of s 76(3). 
  2. [38]
    Thus it is argued that the statutory scheme sets up two alternative pathways.  Section 77(2) is the failure to respond to a payment claim and s 76(3) operates where a payment schedule is delivered in response.  They are the two alternatives that create the debt under s 78(2); see the definition of “amount owed” in s 78(5).  The applicant’s argument is that it is only the s 77(2) “no response” situation that activates the requirements of s 99. 
  3. [39]
    This is said to be an understandable and logical distinction.  Where there is no response, it may be because the respondent did not receive the payment claim; or there may be genuine confusion as to its details and a need to resolve them before it is responded to within a particular time limit.  In those circumstances it is understandable if s 99 dictates the giving of additional notice before court proceedings are commenced; clarification of the document said to be a payment claim may be required.  However, the machinery of s 99 does not apply to the present case where the respondent was able to properly respond.  Thus the additional notice under s 99 is not required pursuant to the statute. 
  4. [40]
    The applicant also notes that the relevant approved form contains fields for “payment claim details” but not payment schedule details.  While not determinative, this feature is consistent with the construction contended for by the applicant.
  5. [41]
    Thus as this is a s 76(3) case, it is submitted that the s 99 procedure was not necessary.
  6. [42]
    The applicant also refers to s 78(5)(b) and the reference therein to “the amount proposed to be paid under the payment schedule”; a reference not to the “payment claim amount” but rather the scheduled amount as the “amount owed”. It is thus logical that the scheduled amount – where, as here, it is quantified as contemplated by the statutory scheme and calculated pursuant to the respondent’s mandated Payapps system – would be used for the Section 99 Notice.

The applicant: s 99 was in any case complied with

  1. [43]
    Alternatively the applicant argues that if s 99 does apply, it was satisfied.  In this case the approved form was used and contained a description of the claim now brought.  The form responds to the only mandatory statutory requirement of notice of “the claimant’s intention to start the proceedings”.  The applicant argues that the form was sufficient; it described the claim brought; and the fact that the amount set out refers to the scheduled rather than the original claimed amount does not invalidate it. The section is to be construed in the context of the purpose of the BIF Act including to facilitate quick interim payments with minimal formality. It would be understandable if the applicant simply wished to give notice of proceedings to recover the amount which is undisputed by the respondent, and this is consistent with s 99.
  2. [44]
    The BIF Act does not mandate any particular amount to be given notice of; there does not seem to be any reason a lesser amount than the amount owed can be included in a notice, although it may be different if more than the scheduled amount were claimed. Section 99(1)(b) simply refers to the “unpaid portion” after a payment claim. Section 99(5) provides that giving of a warning notice does not require the claimant to complete the action stated therein or prevent the claimant from taking different action to that stated in the notice. This suggests that the amount stated in the form is not vital to its effectiveness. The section describes the notice as a “warning notice” and no degree of particularity is mandated other than a reference to the approved form. The applicant used the approved form and completed the required fields. The only criticism of this is the selection of the scheduled amount rather than the original claimed amount. As mentioned above, in my view this is understandable and appropriate. In the circumstances the respondent’s argument that the notice is “deficient” and thus ineffective cannot be accepted.

Substantial compliance?

  1. [45]
    The applicant also notes and calls in aid s 48A of the Acts Interpretation Act 1954 (Qld) (“AIA”) wherein strict compliance with a form is not necessary and substantial compliance is sufficient.  Although there was reference in Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd & Anor [2023] QSC 290 (an earlier Iris Broadbeach decision than the one mentioned above) to the strict compliance requirements of the BIF Act displacing s 48A(1), this was in the context of referral of disputes to adjudication proceedings under s 79(3) and the applicant submits this ought not be applied to the s 99 procedure.
  2. [46]
    In Iris Broadbeach Williams J observed at [66] that there are various decisions highlighting that the adjudication process under the BIF Act has been interpreted to require strict compliance.  The theme in some of the authorities referred to by her Honour is that a rigid approach is required to this issue in the context that the scheme creates special statutory rights.  Importantly, the pre-commencement procedure has the function of informing the recipient so that it knows precisely where it stands at that point in time (at [71]). 
  3. [47]
    The respondent also refers to some older authorities dealing with other statutory schemes and the fact that subcontractors are put in a favoured position by the BIF Act such that strict compliance with its terms is required; see Re Galaxy Investments (Qld) Pty Ltd [1993] QSC 231.
  4. [48]
    There is force in the argument that the requirements for commencing adjudication proceedings are of a different nature to the s 99 procedure which turns on the previous delivery of a valid payment claim and, as the applicant submits, the engagement of s 76(3) by the respondent’s response in the form of a payment schedule.  This is a different situation from the procedures required for the reference of a dispute to adjudication under s 79(3) of the BIF Act and its exclusion, according to the authorities referred to above, of s 48A(1) of the AIA.  I have not been referred to authority specifically dealing with this issue in the context of s 99 and the form relating thereto. However there is also merit in the respondent’s argument that for the reasons advanced the statutory scheme does exclude the operation of s 48A(1). For the reasons which follow, including that the s 99 requirements were in fact met, it is unnecessary for me to resolve this question.

Conclusion on this issue: s 99 is either not required to be complied with, or alternatively its requirements were met

  1. [49]
    My conclusion on this issue is that s 99 was not required to be complied with.  In my view the applicant’s analysis that s 76(3) is an alternative to the s 77(2) “no response” situation is correct.  It is logical and workable in terms of the operation of the legislation that it is in the “no response” situation that the s 99 requirement is required. It is a reasonable construction of the legislative scheme, particularly when the whole Act is read in context in a Project Blue Sky sense; i.e. to construe the relevant provision (s 99) so that it is consistent with the language and purpose of all the provisions of the statute (including ss 76 and 77), referring to its language viewed as a whole; see Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
  2. [50]
    Further, if this conclusion is incorrect, I also conclude that the applicant’s alternative submission is correct, that is, I find that the requirements of s 99 were met for the reasons set out in [43]-[44] above. It is thus not necessary to further analyse substantial compliance.

Conclusion as to claim under the BIF Act

  1. [51]
    As set out above, my conclusion is that the applicant succeeds on the statutory claim, as its payment claim complied with the legislation and the proceedings are not invalidated by s 99. Thus it is not necessary to resolve the contractual issues, possibly apart from consideration of the cross application. Nevertheless it is appropriate that they be dealt with – it is best to determine the entire controversy between the parties if possible. Doing so may reduce the need for, or narrow the scope of, further litigation between the parties.

Alternative claim in contract

  1. [52]
    The BIF Act does not limit the other rights of a claimant; s 63.  The applicant argues that the payment schedule was also within the meaning of a “certificate” pursuant to Clause 37.2 of the sub-contract.  It contends that the requirements of Clause 37.1 of the subcontract for progress claims were satisfied and as the payment schedule satisfied the definition of a payment certificate and no set off was raised within 15 business days after receiving the progress certificate the balance is owing, as a debt under Clause 37.2 of the subcontract.

Respondent’s claim of setoff

  1. [53]
    The respondent seems not to dispute this analysis of a contractual debt.  Rather, it relies on a general right of set off embodied in Clause 37.7 of the subcontract.  This is of limited relevance where my conclusion is that the claim under the BIF Act succeeds, but for completeness is considered as follows.
  2. [54]
    Clause 37.7 refers to a general description of the principal contractor’s rights to payment by way of damages, debt, restitution or otherwise and whether or not the factual basis giving rise thereto arises out of the contract or otherwise.  This is, as the respondent describes it, a broad right to set off amounts, even after certification.  It is styled by the respondent as an election that, monies being due under the subcontract, set offs are claimed with the result that there is nothing payable to the applicant under the subcontract.
  3. [55]
    The respondent also asserts that it has referred the dispute in respect of the payment to the dispute resolution provisions under the contract.  These matters are therefore to be determined in that forum by way of expert consideration. 

Applicant’s response

  1. [56]
    The applicant responds that contentions of set off do not arise in this case, where the claim under the BIF Act succeeds (s 100(3) of the BIF Act).  Further, they also do not arise under the subcontract in any case. It points to the provision of Clause 37.2 where, having issued a progress certificate, the main contractor is required to pay the balance thereof within 15 days after deducting retention monies and setting off such of the certificate as the main contractor elects to set off.  As the main contractor did not do so in this case, claims of set off do not arise.  The claim of a set off was raised for the first time on 12 February 2025, after the proceedings were commenced and after the subcontract had been terminated. 
  2. [57]
    The applicant further submits that Clause 37.7, the right to set off, does not survive the termination of the contract on 10 September 2024 whereas the contractual debt represented by the certificate does survive pursuant to Clause 40A, as the certificate falls into the category of an unpaid progress certificate.
  3. [58]
    As to the referral of the disputed contractual claims to expert determination, again the applicant’s argument is that the dispute resolution provision is not expressed to survive the termination of the subcontract; the surviving rights are restricted to those described in Clause 40A.  Further, Clause 42.6 provides that “nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under the subcontract or to seek injunctive or urgent declaratory relief”.  Thus the applicant’s argument is that its originating application is authorised by the subcontract and not subject to the dispute resolution process.
  4. [59]
    If the respondent does have a cause of action falling within the description in clause 37.7, there seems to be no reason it cannot be pursued in separate proceedings.

Conclusion as to rights of setoff in the contractual claim

  1. [60]
    In my conclusion the applicant’s submissions on this point must be accepted. The respondent’s late unilateral referral of unquantified and unproven set offs after the contract was terminated and where the relevant term is not expressed to survive termination does not have the effect of extinguishing the contractual claim. In any case, this is in the context of my determination of the statutory claim in the applicant’s favour, so the question is of marginal relevance. The respondent may have rights which may be pursued in separate proceedings.

Respondent’s interlocutory application

  1. [61]
    Finally, the respondent applies for either injunctive relief or a stay to prevent the applicant taking steps to execute judgment upon any amounts that are found owing, until further order.  The theme seems to be that if the respondent does pursue some other causes of action against the applicant, payment of the present debt is undesirable where the end result, if the respondent succeeds, would be repayment by the applicant of money paid by the respondent in discharge thereof.
  2. [62]
    The respondent argues that it has demonstrated a prima facie case justifying such an intervention, and the balance of convenience favours granting such an order to preserve the status quo during “the period of the dispute”.  It is not clear what this period would be; such proceedings as the respondent may take to enforce its claimed set off have not yet been formulated or filed.
  3. [63]
    The general theme of this is that that there is affidavit material (in respect of some of the aspects of which there is dispute by contradictory evidence on the applicant’s side) said to show a prima facie case of the applicant allegedly committing an economic tort.  There is also a reference to possible conspiracy, deceit or causing loss by unlawful means.  The respondent submits that “the extent of the applicant’s involvement in the arrangement with Mr French is somewhat unclear, however the respondent has a reasonable basis to suspect that some form of misconduct has taken place.”
  4. [64]
    There does not seem to be any evidence of any irreparable harm which would be suffered by the respondent in the absence of such an order.

Applicant’s response

  1. [65]
    The applicant opposes such an order and points out that these broad assertions, which are not the subject of a pleading, are denied by the applicant.  The vague allegation that “some form of misconduct has taken place” is unsatisfactory.
  2. [66]
    As outlined above, the applicant’s position is that referral of the dispute to the dispute resolution provision is stillborn.  The alleged monetary loss relied on as a set off is only claimed in relation to (a) unparticularised sums of money allegedly owed pursuant to other separate subcontracts and (b) an assertion that the subcontract price for this subcontract was more than the tender price.  This second claim is curious – and basically irrelevant - in circumstances where the parties subsequently reduced their agreement to a written contract.  The applicant submits that no cause of action is identified that would result in the respondent being entitled to the difference between whatever the final tender was and the written value of the subcontract.
  3. [67]
    The applicant also submits that the balance of convenience does not favour injunctive relief or a stay.  There is no basis for the respondent to argue that it would be unfair for the applicant to recover the amount outstanding on account, as agreed in the subcontract, and to which it argues it is entitled under the BIF Act. 
  4. [68]
    As to referral to the contract dispute resolution process in Clause 42, as outlined above, the applicant’s position is that this does not apply, having been raised after the contract is terminated.  In any case, the claims now raised are so weak as to not justify interlocutory relief of the kind sought. 

Discussion and Conclusion as to the Cross Application

  1. [69]
    There is some doubt as to whether injunctive relief of the kind sought is within the jurisdiction of this Court pursuant to ss 68 and 69 of the District Court Act 1967 (Qld).  As an inferior court, the Court’s jurisdiction is confined by statute. The power to grant an injunction of the kind sought is not expressly set out in s 68 but may be within s 69 (2)(b) – where the application is otherwise within the jurisdiction, there is power to grant an interlocutory injunction. The applicant submits that if its application is successful and an order made for payment of the debt, this Court is in effect functus officio and there is no longer a “proceeding in which jurisdiction is conferred” for the power to attach to. Whether this is so or not, in my conclusion the weighing of the balance of convenience in the circumstances outlined does not favour the granting of an injunction, considering the vague and tenuous nature of the claimed rights and the lack of evidence of an imminent disposal of assets by the applicant such that pursuit of such rights as the respondent has would be frustrated.
  2. [70]
    The respondent also applies for a stay under UCPR 800. Under that rule, the principles include that a judgement creditor is entitled to the fruits of its victory in the absence of special or exceptional circumstances; the onus is on the applicant to demonstrate why the Court should deny the applicant of the benefit of its orders. Factors include doing justice between the parties by balancing their competing rights and whether the assets of the judgement creditor may be disposed of: Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349 at [19]. There is no evidence suggesting a likely disposition of assets or other special or exceptional circumstances. Again, a stay is not justified.

Conclusion

  1. [71]
    My conclusion is that the applicant succeeds on its application under the BIF Act and in the exercise of my discretion the cross application for an interlocutory injunction or stay is refused. This results in judgement in favour of the applicant in terms of the orders set out above. The interest calculation is set out in a document prepared by the applicant and attached as Annexure A to these reasons.
Close

Editorial Notes

  • Published Case Name:

    Starline Interiors Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd

  • Shortened Case Name:

    Starline Interiors Pty Ltd v Tomkins Commercial and Industrial Builders Pty Ltd

  • MNC:

    [2025] QDC 63

  • Court:

    QDC

  • Judge(s):

    Kent KC DCJ

  • Date:

    11 Apr 2025

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2025] QDC 6311 Apr 2025-
Notice of Appeal FiledFile Number: CA 1887/2508 May 2025-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd(2023) 17 QR 361; [2023] QSC 290
2 citations
Jump To
Cite 1 - [2023] QSC 290
Cite 2 - [2023] QSC 290
Iris Broadbeach Business Pty Ltd v Descon Group Australia Pty Ltd [2024] QSC 16
2 citations
Jump To
Cite 1 - [2024] QSC 16
Cite 2 - [2024] QSC 16
KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd [2019] QSC 178
2 citations
Jump To
Cite 1 - [2019] QSC 178
Cite 2 - [2019] QSC 178
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333
2 citations
Jump To
Cite 1 - [2007] QSC 333
Cite 2 - [2007] QSC 333
MWB Everton Park Pty Ltd v Devcon Building Co Pty Ltd [2024] QCA 94
2 citations
Jump To
Cite 1 - [2024] QCA 94
Cite 2 - [2024] QCA 94
Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd[2011] 1 Qd R 17; [2009] QSC 376
2 citations
Jump To
Cite 1 - [2009] QSC 376
Cite 2 - [2009] QSC 376
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Re Galaxy Investments (Qld) Pty Ltd (in liq) [1993] QSC 231
2 citations
Jump To
Cite 1 - [1993] QSC 231
Cite 2 - [1993] QSC 231
T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381
2 citations
Jump To
Cite 1 - [2010] QCA 381
Cite 2 - [2010] QCA 381
Taringa Property Group Pty Ltd v Kenik Pty Ltd [2024] QSC 298
2 citations
Jump To
Cite 1 - [2024] QSC 298
Cite 2 - [2024] QSC 298
Virgtel Ltd v Zabusky (No 2) [2009] QCA 349
2 citations
Jump To
Cite 1 - [2009] QCA 349
Cite 2 - [2009] QCA 349

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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