Alan Conolly & Co v Commercial Indemnity - [2005] NSWSC 339

CITATION:
Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339

HEARING DATE(S): 13/04/05

JUDGMENT DATE :

29 April 2005

JURISDICTION:
Technology & Construction List

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 41

CATCHWORDS:
Contract - Statutory Construction. - Whether three invoices served in the same facsimile can constitute one payment claim under the Building and Construction Industry Security for Payment Act 1999. - Held that this did constitute one payment.

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act

CASES CITED:
Brodyn Pty Limited v Davenport (2004) NSWCA 394
Co-ordinated Constructions Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWSC 77
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391
Transgrid v Siemens [2004] NSWSC 87 at 91 to 100

PARTIES:
A R Conolly, E Ramsay & L Mynott t/as A R Conolly & Company v Commercial Indemnity Pty Limited

FILE NUMBER(S):
SC 55026 of 2005

COUNSEL:
Mr M Christie for plaintiff
Mr S Balafoutis for 1st defendant

SOLICITORS:
A R Conolly & Company for plaintiff
Bryan Gorman & Co for 1st defendant

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Master Macready

Friday 29 April 2005

55026 of 2005 A R Conolly, E Ramsay & L Mynott t/as A R Conolly & Company v Commercial Indemnity Pty Limited and Johanne Tobin

JUDGMENT

1 Master: This is the hearing of the plaintiffs’ claim in which they now seek a declaration that a determination made by the second defendant under the Building and Construction Industry Security of Payment Act 1999 (“the Act”) is void. They also seek an order in the nature of certiorari pursuant to section 69 of the Supreme Court Act 1970 quashing the determination. A Judge of the Court has referred the whole of the matter to me for hearing.

2 The plaintiffs who carry on business as A R Conolly & Company engaged the first defendant to carry out construction works which were an office fit-out at the plaintiffs’ business premises. The works were carried out between August 2004 and November 2004. There is no written contract and the works were carried out pursuant to an oral agreement between the parties, which did not make any provision for progress payments.

3 The matter at issue is an alleged payment claim that was served by the first defendant on the plaintiffs on 14 February 2005. The payment claim or claims were served by facsimile and its form is important. The facsimile was of four pages duration and consisted of three tax invoices dated 14 December 2004. Each tax invoice occupied one page. The fourth page was simply a repeat of the information on the first page. Accordingly it can be put to one side.

4 The first page was invoice number 041216 and on its face was for “Variations to the scope of works – various”. It specified the amounts and concluded with a statement of…

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.

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Details

Case: [2005] NSWSC 339
Decision Date: 29 April 2005

CaseChat Overview and Summary

Alan Conolly & Co, a contractor, brought a claim against Commercial Indemnity, the principal, for alleged breaches of contract and statutory obligations under the Building and Construction Industry Security for Payment Act 1999. The dispute centred on whether three invoices, transmitted via a single facsimile, could be considered a single payment claim under the Act. The case was heard and determined in the Supreme Court of Queensland.

The primary legal issue before the court was whether the three invoices sent to the principal in one facsimile transmission constituted a single payment claim as defined under section 49(1) of the Act. The court needed to interpret the statutory language and determine whether the legislative intent permitted a single transmission to encompass multiple invoices. This interpretation was crucial because the timing and validity of the payment claim directly affected the rights and obligations of both parties under the Act.

The court held that the three invoices, despite being sent in a single facsimile, constituted a single payment claim. The court found that the legislative purpose of the Act was to facilitate timely and efficient payment processes, and that the statutory language did not preclude multiple invoices from being sent together. The court reasoned that if the principal had received all invoices simultaneously, they could be considered a single claim, and the statutory timelines for responding to that claim would apply accordingly.

As a result of the court's decision, Alan Conolly & Co's claim proceeded on the basis that the three invoices were a single payment claim. The final orders of the court reflected this finding, allowing the case to move forward on the merits of the underlying contractual and statutory disputes.

Orders