The Court held that clause 5.2(b) of the building contract, which permitted recourse to security 'in respect of any claim to payment (liquidated or otherwise)', created an unfettered right to call on security requiring only the assertion of a claim and 7 days' notice, not a proved entitlement. The Court further held, following Saipem (No 3) and Sun Engineering, that s 67J of the QBCCA does not apply to claims for unliquidated damages, and accordingly the 28-day notice requirement in s 67J(2) did not constrain the respondent's recourse to security for its consequential loss claim. Because the security clause served a dual purpose of security and risk allocation, the balance of convenience favoured refusal of the injunction.
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