Acclaim Building Management Pty Ltd v Loewenthal

CITATION:	Acclaim Building Management Pty Ltd v Loewenthal [2006] NSWDC 29
HEARING DATE(S):	15 June 2006
JUDGMENT DATE:	21 June 2006
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Plaintiff's motion for summary judgment dismissed; Plaintiff's substantive proceedings dismissed under r 13.4 of the UCPR
CATCHWORDS:	BUILDING AND CONSTRUCTION - Building & Construction Industry Security of Payment Act - Payment schedules - Construction contracts excluded by s 7(2)(b)
LEGISLATION CITED:	Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 Home Building Act 1989
CASES CITED:	Barclay Mowlen Constructions Pty Ltd v Tesrol Walsh Bay [2004] NSWSC 1232 Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited [2006] NSWSC 223 Cox v Journeaux (No 2) (1935) 52 CLR 713. Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 Kembla Coal & Coke v Select Civil [2004] NSWSC 628 Mutliplex Contractors Pty ltd v Luikens [2003] NSWSC 1140 Nepean Engineering Pty Limited v Total Process Services Pty Limited (In Liquidation) [2005] NSWCA 409
PARTIES:	Acclaim Building Management Pty Ltd (Plaintiff) Heather Loewenthal (Defendant)
FILE NUMBER(S):	5426/2005
COUNSEL:	Mr Christie (Plaintiff) Mr D D Feller SC (Defendant)
SOLICITORS:	Harris Friedman Hyde Page (Plaintiff) Mills Oakley (Defendant)

JUDGMENT

1. There are two notices of motions in these proceedings, which I heard together on 15 June 2006.

2. The plaintiff filed a Statement of Claim on 5 December 2005 claiming $89,132.63 pursuant to a payment claim made under the Building and Construction Industry Security of Payment Act 199 (The BCISP Act) in respect of a building contract entered into on 28 May 2003.

3. The defendant filed a Defence on 16 March 2006 and an Amended Defence on 9 May 2006, disputing the claim.

4. The defendant filed a Notice of Motion on 16 March 2006 seeking an order that the plaintiff’s proceedings be dismissed under r 13.4 of the UCPR.

5. The plaintiff filed a Notice of Motion on 16 June 2006 seeking an order that summary judgment be entered against the defendant under r 13.1 of the UCPR.

6. At the hearing of the motions both parties filed affidavits and made oral and written submissions. I reserved judgment.

7. The motions give rise to various issues.

8. The plaintiff relies on s 15 of the BCISP Act. The defendant, relying on s 7(2)(b), says that Act does not apply to this construction contract.

9. The plaintiff says that having served a valid payment claim on the defendant in accordance with s 13 of the BCSIP Act, the defendant failed to reply by providing a payment schedule in accordance with s 14 thereof. It is, therefore, entitled to recover the amount of the payment claim as a debt, under s 15, and the defendant is not entitled, in these proceedings, to raise any defence or bring a cross-claim.

10. The defendant says a number of things by way of defence: first, that the plaintiff’s purported payment…