Legal Research
Cases
Allpro Building Services v C&v Engineering Services

Allpro Building Services v C&v Engineering Services

Case [2009] NSWSC 1247 17 November 2009

Breach of Contract

Unconscionable Conduct

Statutory Interpretation

Construction Law

Contract Law

No judgment structure available for this case.

Type to search within this case.

CITATION: Allpro Building Services v C&V Engineering Services [2009] NSWSC 1247

HEARING DATE(S): 17 November 2009

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 17 November 2009

DECISION: See paras [26] to [27] of the judgment.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act - validity of payment claim - whether made with respect to a reference date the subject of previous claims - whether this aspect of Brodyn decided incorrectly - whether estoppel created by adjudication of earlier payment claims - whether claims replicated by separate entities - whether an abuse of process.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CATEGORY: Separate question

CASES CITED: Associated Midland Corporation Limited v Bank of New South Wales (1984) 51 ALR 641
Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416
Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405
University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635
Urban Traders v Paul Michael [2009] NSWSC 1072
Walton v Gardiner (1993) 177 CLR 378, Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256

PARTIES: Allpro Building Services Pty Limited (ACN 092 293 104) (Plaintiff)
C&V Engineering Services Pty Limited (ACN 003 275 134) (Defendant)

FILE NUMBER(S): SC 55110/09

COUNSEL: F G Kalyk (Plaintiff)
F C Corsaro SC (Defendant)

SOLICITORS: Church & Grace (Plaintiff)
KQ Lawyers (Defendant)

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

McDOUGALL J

17 November 2009 (ex tempore – revised 17 November 2009)

55110/09 ALLPRO BUILDING SERVICES PTY LIMITED v C&V ENGINEERING SERVICES PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff (Allpro) and the first defendant (Engineering) are parties to a construction contract made on about 22 February 2008. Under that contract, Engineering, a steel works fabricator, agreed to manufacture and supply structural steel and related items to Allpro, a builder, in respect of a development at Potts Point. It is common ground that the construction contract was one to which the Building and Construction Industry Security of Payment Act 1999 (the Act) applied.

Factual background

2 Engineering has made a number of progress claims, which were payment claims for the purposes of the Act, during the currency of the work. Unfortunately, identification and understanding of the real issues in dispute between Allpro and Engineering has not been facilitated by the way in which Engineering has chosen to submit its claims. The present dispute concerns a payment claim made on 2 October 2009. A total of $314,608.10 was claimed. The claim was advanced by reference to a substantial number of invoices rendered over a period 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.

Continue reading Allpro Building Services v C&v Engineering Services

Details

AGLC: Allpro Building Services v C&v Engineering Services [2009] NSWSC 1247
Case: [2009] NSWSC 1247
Decision Date: 17 November 2009

CaseChat Overview and Summary

In the case of Allpro Building Services v C&v Engineering Services, the dispute involved the validity of a payment claim under the Building and Construction Industry Security of Payment Act. The central issue before the court was whether the payment claim was validly made with respect to a reference date that had already been the subject of previous claims. The court was also tasked with determining whether a particular aspect of a previous decision in Brodyn had been incorrectly decided, specifically regarding the creation of an estoppel by the adjudication of earlier payment claims. Additionally, the case examined whether claims made by separate entities were effectively replicated, and whether such claims amounted to an abuse of the process.

The court considered the legislative framework and the relevant case law, including the decision in Brodyn, to assess the validity of the payment claim. It examined whether the earlier adjudications created an estoppel that precluded the making of further claims. The court also explored the nature of the claims made by separate entities and whether they constituted an abuse of process. In doing so, the court balanced the rights of the parties under the Security of Payment Act with the principles of estoppel and fairness in commercial dealings.

The court found that the payment claim was validly made, and that the previous adjudications did not create an estoppel that precluded the making of further claims. It concluded that the replication of claims by separate entities did not amount to an abuse of process. The court upheld the validity of the payment claim and determined that the principles applied in Brodyn were correctly interpreted. The decision provided clarity on the interplay between estoppel, the adjudication process, and the rights of parties under the Security of Payment Act.

The final orders of the court affirmed the validity of the payment claim, and directed that the respondent was required to pay the amount claimed within the specified timeframe. The court's decision provided important guidance for parties involved in similar disputes under the Building and Construction Industry Security of Payment Act.

Orders