A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd - [2019] NSWSC 404

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd [2019] NSWSC 404
Hearing dates: 21, 22 March; 1 April 2019
Date of orders: 12 April 2019
Decision date: 12 April 2019
Jurisdiction: Equity - Commercial List
Before: Parker J
Decision:
Proceedings adjourned for the entry of final orders and the hearing of any application by the defendant for a stay.

Catchwords:
BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – application for recovery of “claimed amount” as a debt due – validity of payment claims - whether payment claims sufficiently identified contract work - whether email sufficiently identified contract works to constitute a payment schedule – validity of service of payment claims - service by email pursuant to s 31(1)(c) - where no direct evidence of time of receipt .
BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – cross-claim for breach of contract and set off for damages – contractual effect of consent orders - whether agreement by consent bore contractual force such that application for judgment could not be sought in advance of determination of cross-claim - whether notwithstanding agreement cross-claim may be used as a defence pursuant to s 15(4) - whether s 34 would otherwise invalidate an agreement purporting to contract out of the jurisdiction of the Act.
Legislation Cited: Building and Construction Industry Security for Payment 1999 (NSW), ss 13(2), 14, 15, 31(1)(c), 34
Competition and Consumer Act 2010 (Cth), Schedule 2, The Australian Consumer Law, s 18
Trade Practices Act 1974 (Cth), s 52
Electronic Transactions Act 2000 (NSW), s13A
Cases Cited: Barnden v Zulian; Barnden v Commissioner of Taxation [2018] NSWSC 1980
Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 199 CLR 460; [1967] HCA 3
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2007) 23 BCL 292; [2006] NSWCA 259
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd [2019] NSWSC 286
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
Mullins v Howell (1879) 11 Ch D 763
Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140
National Benzole Co Ltd v Gooch [1961] 1 WLR 1489
Purcell v F C Trigell Ltd [1971] 1 QB 358
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Woods v Sheriff of Queensland (1895) 6 QLJ 163
Category: Principal judgment
Parties: A-Tech Australia Pty Ltd (Plaintiff)
Top Pacific Construction Aust Pty Ltd (Defendant)
Representation:
Counsel:
FP Hicks SC/J Nathan (Plaintiff)
F Santisi (Defendant)
Solicitors:
Goh Lawyers (Plaintiff)
KPL Lawyers (Defendant)

File Number(s): 2018/295750
Publication restriction: Nil

Judgment

These proceedings arise out of a contract between Top…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 404
Decision Date: 12 April 2019

CaseChat Overview and Summary

A-Tech Australia Pty Ltd sought to recover a sum of money from Top Pacific Construction Aust Pty Ltd under the Building and Construction Industry Security of Payment Act 1999 (NSW). The dispute arose from a construction contract where A-Tech claimed an amount due as a debt. The primary issue was whether the payment claims made by A-Tech were valid, specifically whether they adequately identified the contract work to constitute a payment schedule and whether the service of these claims by email was valid. There was no direct evidence regarding the time of receipt of the emailed claims.

The court considered the statutory requirements under the Act for payment claims and their service. It found that the payment claims did sufficiently identify the contract work, despite the absence of direct evidence regarding the time of receipt of the emailed claims. The court held that the service by email was valid under section 31(1)(c) of the Act. The court also addressed the cross-claim for breach of contract and set off for damages, determining that the agreement by consent did not bear contractual force that would prevent an application for judgment before the determination of the cross-claim. Additionally, the court ruled that the cross-claim could be used as a defence under section 15(4) and that section 34 would not invalidate an agreement attempting to contract out of the jurisdiction of the Act.

The final orders included a declaration that the payment claims were valid and that A-Tech was entitled to recover the claimed amount. The court also ordered that the cross-claim for breach of contract and set off for damages could proceed but did not affect the primary claim for the payment under the Act.

Orders