Amflo Constructions Pty Ltd v Jefferies

[2003] NSWSC 856

CITATION:	Amflo Constructions Pty Limited v Anthony Jefferies [2003] NSWSC 856
HEARING DATE(S):	11 September 2003
JUDGMENT DATE:	17 September 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Application for adjudication made within time
CATCHWORDS:	STATUTES - ACTS OF PARLIAMENT - interpretation - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made
LEGISLATION CITED:	Building and Construction Industry Security of Payment Act 1999 Building and Construction Industry Security of Payment Amendment Act 2002 Interpretation Act 1987 Statute Law (Miscellaneous Provisions) Act 2003
PARTIES :	Amflo Constructions Pty Limited - First Plaintiff George Khouri - Second Plaintiff Anthony Jefferies - First Defendant Westport Plumbing Pty Limited - Second Defendant
FILE NUMBER(S):	SC 4774/03
COUNSEL:	M Sahade - Plaintiffs No appearance - First Defendant DD Feller - Second Defendant
SOLICITORS:	M Sahade, counsel - Plaintiffs A Jefferies - First Defendant Mallesons - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

17 September 2003

4774/03 AMFLO CONSTRUCTIONS PTY LIMITED & ANOR v ANTHONY JEFFERIES & ANOR

JUDGMENT

HIS HONOUR:

Nature of the Case

1 This case concerns whether a purported adjudication under the Building and Construction Industry Security of Payment Act 1999 (“SOP Act”) is valid. It turns on whether the application for adjudication was made within the time required by that Act.

Facts Giving Rise to the Dispute

2 The First Plaintiff (“the Builder”) is carrying out construction work at 3 Railway Parade Burwood. On 9 April 2003 it entered into a construction contract as defined in the SOP Act with the Second Defendant (“the Subcontractor”).

3 On 10 July 2003 the Subcontractor served the Builder with a progress claim for $21,960.42. It is common ground that this was a valid progress claim within the meaning of the SOP Act. For the whole of the rest of July, the Builder did nothing in response to that progress claim.

4 On 31 July 2003 the Subcontractor served on the Builder a notice under section 17(2) of the SOP Act, it said:

“ Notice under s.17(2) of the Building and Construction Industry Security of Payment Act 1999 NSW
In response to Westport Plumbing Pty Ltd’s “WPPL” Payment Claim (Tax Invoice/Progress Claim No.1) dated the 10th July 2003 for $21,960.42 including gst, Amflo Constructions Pty Ltd “ACPL” has failed to provide a Payment Schedule within the time allowed by the Building and Construction Industry Security of Payment Act 1999 NSW. As a consequence “ACPL” became liable to pay the whole amount of the claim on the due date. The whole amount has not been paid.
Notwithstanding the above, “WPPL” has elected to apply for Adjudication of the Payment Claim. Further to this, “ACPL” has 5 business days in which to serve a Payment…