The developer of a high-profile Sunshine Coast apartment complex has been ordered to pay a contractor more than $3 million over an unpaid invoice.
The dispute involved Gold Coast-based Alroe Constructions Pty Ltd, which claimed the amount was owed by Emporio Fiduciaries Pty Ltd, as trustee for the Emporio Trust, which is in liquidation.
The Emporio complex at Maroochydore currently comprises six- and eight-storey mixed-use buildings and a four-storey office building, with commercial tenancies at ground level and apartments above.
A third stage was planned but the remaining 3589sqm of vacant land at 2-10 Maroochy Boulevard – which has approval for a childcare centre, medical facility and office space – was put on the market earlier this year.
The decision by Queensland Building and Construction Commission adjudicator Barry Tozer was published on October 7.
“The claimant (Alroe) is a contractor specialising in commercial, residential and industrial building work … who acted as head contractor under the contract for the project,” it said.
“The respondent (Emporio) was the developer of the project and principal under the contract.
“The project was described in the adjudication application as the construction of Emporio Place, a ‘multi-residential apartment complex’.
“The contract sum was $27,817,714.28 and the date for practical completion was November 20, 2024.”
The payment claim for $2,901,427.18 excluding GST was made by Alroe on June 30 this year, with the contract requiring payment within 15 business days.
“The total amount claimed in the adjudication application including GST is $3,191,569.89,” the decision said.
“This amount comprises a current progress claim amount of $88,509.39 (excluding GST) and a total outstanding amount from previous progress claims dating back to December 2023 amounting to $2,812,917.79 (excluding GST).
“As noted in the payment claim summary, no payments have been made by the respondent to the claimant since December 2023.”
Emporio entered voluntary administration on July 4 this year, with a liquidator appointed on August 8. Alroe lodged the adjudication application with QBCC on August 25.
On September 2 the liquidator advised “Emporio is in liquidation and is without funds or funding, (and) we do not accept the proposal”.
Emporio’s solicitors also argued that, under the Corporations Act, no civil proceeding could be commenced after a voluntary winding up, except by leave of a court.
But Mr Tozer ruled that he did have jurisdiction to consider the application.
“Because it is a unilateral and interim process and the result does not otherwise affect the legal rights of the parties, I find that it is not a ‘civil proceeding’ (or an action) for which leave may need to be sought,” the decision said.
The decision notes that the application and accompanying documents included about 1000 pages plus a USB of case law.
Mr Tozer ruled that under the Building Industry Fairness (Security of Payment) Act, Alroe was entitled to the payment of $3,191,569.89 including GST from Emporio, which was due on July 21.
The contract also provided for interest on outstanding payments to be charged at 18 per cent per year.
“I adopt that interest rate accordingly,” the decision said.
He also ruled Emporio should pay 100 per cent of the adjudicator’s fees and the cost of the application.
“However, as the respondent is in liquidation, I am not able to direct payment by the respondent. Further, I have no authority to direct payment be made from the assets of the respondent by the liquidator,” the ruling said.
“As the parties are jointly and severally liable for payment of my fees, I therefore direct that the claimant is to pay 100 per cent of the adjudicator’s fees and the cost of the adjudication application.”
