Arrow International Australia Ltd v 77 Bouverie Pty Ltd
[2009] VCC 1503
•9 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
COMMERCIAL LIST
BUILDING CASES DIVISION
Case No. CI-09-03684
| ARROW INTERNATIONAL AUSTRALIA LTD | Plaintiff |
| (ACN 103 265 649) | |
| v | |
| 77 BOUVERIE PTY LTD | Defendant |
| (ACN 112 684 723) |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 August 2009 |
| DATE OF JUDGMENT: | 9 September 2009 |
| CASE MAY BE CITED AS: | Arrow International Australia Ltd v 77 Bouverie Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1503 |
REASONS FOR JUDGMENT
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Catchwords: Summary judgment application – Building and Construction Industry Security of Payment Act 2002 – Superseded claims – Election – Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 – Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332 – Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156 – Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2006] VSC 425 – Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Andrew | Meier Denison Guymer Pty Ltd |
| For the Defendant | Mr A J Laird | Mills Oakley Lawyers |
| HIS HONOUR: |
1 This is an application for summary judgment pursuant to Order 22 of the County Court Civil Procedure Rules 2008. The application is based upon s.16(2)(a)(i) of the Building and Construction Industry Security of Payment Act 2002 (“the Act”).
2 The approach to be taken to a summary judgment application is stated by the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 89, as follows:
“The power to order summary or final judgment is one that should be exercised with great care. It should never be exercised unless it is clear that there is no real question to be tried.”
3 To similar effect is the statement of Herring CJ and Lowe J in Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, at 334, that:
“Where there is a real case to be investigated either in fact or law, leave
to defend should be given.”
4 Mr Andrew, who appeared for the plaintiff, originally submitted that the well-established approach to summary judgment applications as set out above did not apply to the Act. He relied upon comments made in Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd [2009] VSC 156 where Vickery J stated, particularly at paragraphs [44] and [46], that the Act should be interpreted without “excessive legal formality” and “unnecessary technicality”. He later modified his position, at my suggestion, to a requirement that the Act be approached “robustly”.
5 The plaintiff entered into a building agreement with the defendant dated 17 October 2008 to erect for it a student accommodation building at 77 Bouverie Street, Carlton, for the sum of $8.25 million.
6 On 29 April 2009 the plaintiff forwarded invoice number 206014 to the defendant for the sum of $892,552.50 excluding GST. It is not in issue that this invoice was a payment claim which complied with s.14 of the Act. No payment schedule was provided in accordance with s.15 of the Act.
7 On 27 May 2009 the plaintiff forwarded to the defendant invoice number 206054, adjusting downwards the claim made in invoice 206014 by the sum of $322,110.50 excluding GST. This was done in accordance with an assessment by Stephen Foley, a quantity surveyor appointed by the defendant’s lender. Again, it is not in issue that this invoice complied with s.14 of the Act.
8 This left a balance owing in respect of invoice 206014 of $627,486.20 after allowing for GST. This sum was paid by the defendant to the plaintiff on 12 June 2009.
9 On 27 May 2009 the plaintiff also rendered to the defendant invoice number 206055 in the amount of $814,040.25 excluding GST. Again, it is not in issue that this invoice complied with s.14 of the Act and that no payment schedule was provided.
10 On 22 June 2009 the plaintiff forwarded to the defendant invoice number 206168, adjusting downwards the claim made in invoice number 206055 by the sum of $282,921.25 excluding GST, again in accordance with an assessment from Foley in the sum of $311,213.37. Again, it is not in issue that this invoice was a payment claim complying with s.14 of the Act.
11 On 2 July 2009 the defendant paid the plaintiff the sum of $584,230.90, being the adjusted balance owing under invoice number 206055 after allowing for GST.
12 The plaintiff now claims the sum of $718,646.82, being the sum of the monies unpaid under invoice 206014 of $354,321.55 and invoice 206055 of $364,325.27.
13 The defendant contends that it owes no monies to the plaintiff, since it has paid in full the monies claimed on the two adjusted invoices, numbers 206054 and 206168.
14 Mr Laird, who appeared for the defendant, submitted that the plaintiff should not be able to claim the balance owing under invoices 206014 and 206055 on three grounds.
15 Firstly, he submitted that it was arguable that invoices 206014 and 206055 were superseded by the amending invoices numbers 206054 and 206168. He relied upon comments made by Habersberger J in Abigroup Contractors Pty Ltd v River Street Developments Pty Ltd [2006] VSC 425 at paragraphs [79]–[81] where a somewhat similar situation occurred.
16 Secondly, he submitted that the plaintiff had elected to rely upon its adjusted rather than its unadjusted claims, that these were paid by the defendant, and that a plea of settled accounts was open to it. He relied upon comments made by the High Court in Agricultural & Rural Finance Pty Ltd v Gardiner (2008) 251 ALR 322 at 335 and 336 per Gummow, Hayne and Kiefel JJ, and Halsbury’s Laws of Australia at paragraph 185-1640.
17 Thirdly, he relied upon the affidavit of Leong Lim, a director of the defendant, sworn 25 August 2009, in which he deposes that the defendant did not receive a copy of invoice number 206014. He relied upon comments of Habersberger J in Abigroup at paragraphs [44], [45] and [81].
18 Even accepting the submission of Mr Andrew that I should adopt a robust interpretation of the Act, in my view the three defences raised above are arguable, and there is a real question to be tried.
19 The plaintiff’s summary judgment application fails.
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