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Beckhaus v Brewarrina Council

Beckhaus v Brewarrina Council

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Case Copied 18 October 2002 44 min read

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CITATION: Beckhaus v Brewarrina Council [2002] NSWSC 960

CURRENT JURISDICTION: Equity Division - Consruction List

FILE NUMBER(S): SC 55025/2002

HEARING DATE(S): 20/08/02; 6/09/02; 2/10/02

JUDGMENT DATE: 18 October 2002

PARTIES :

Beckhaus Civil Pty Ltd v The Council of the Shire of Brewarrina

JUDGMENT OF: Acting Justice Macready at 1

COUNSEL :
Mr M.G. Rudge SC for plaintiff
Mr W.H. Nicholas QC and Mr M. Christie for defendant

SOLICITORS: Dutton Lawyers for plaintiff
Paul Ward-Harvey & Co for defendant

CATCHWORDS: Contracts - Building, Engineering and related contracts. - Summary judgment application in respect of a progress claim under CL42.1 of AS 2124-1992. Superintendent fails to deal with claims within time. Contractor fails to supply statutory declaration as to payment of subcontractor. Held amount of progress claim due. - Progress claim also made under the Building Construction Industry Security of Payment Act 1999. Held claim under statutory scheme and under contract can be made at same time in one document.

CASES CITED: Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215.
Baulderstone Hornibrook Pty Ltd v HBO & DC Pty Ltd [2001] NSWSC 821
Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 C.L.R. 125
AB & MA Chick (Vic) Pty Ltd v 526 Olive Street Pty Ltd [2001] NSWSC 575
Wigan v Edwards (1971) 47 ALJR 586
Balog v Crestani (1975) 132 CLR 289
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 91 ALR 363 at 376-378
Wilde v Anstee (1999) 48 NSWLR 387
Pyneboard v Trade Practices Commission (1982) 39 ALR 565
Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR 54-575
Mannai Limited v Eagle Star Life Insurance Co Limited [1997] A.C. 749

DECISION: Paragraph 78

- 1 -

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

Acting Justice Macready

Friday 18 October 2002

55025/2002 Beckhaus Civil Pty Ltd v The Council of the Shire of Brewarrina

JUDGMENT

1 His Honour: This is the hearing of a notice of motion filed by the plaintiff on 20 August 2002 in which it seeks summary judgment in respect of a builder’s progress claim number 7 dated 26 April 2002 in the amount of $702,678.45. The relief sought in paragraph 3 of the motion in respect of progress claim number 6 was not pressed when the matter came on for hearing.

The background facts

2 The plaintiff is a builder carrying out for the defendant the construction of levees and associated works at Brewarrina New South Wales. The contract incorporates the Australian standard general conditions of contract (AS 2124-1992). On 27 March 2002 the plaintiff issued progress claim number 6 pursuant to the contract. The contract required the superintendent to assess that claim within 14 days and issue a payment certificate stating the amount of the payment which in the opinion of the superintendent was to be paid by the principal to the…

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: [2002] NSWSC 960
Decision Date: 18 October 2002

CaseChat Overview and Summary

Beckhaus, the plaintiff, filed a claim for a progress payment against Brewarrina Council, the defendant, under both the common law and the statutory security of payment scheme. The dispute centred on whether the defendant council was legally obligated to pay the amount claimed by the plaintiff for work completed. The matter was heard in the Supreme Court of New South Wales. The central legal issue in the case was whether the defendant council was required to honour the progress claim made by the plaintiff. A secondary issue was whether the plaintiff was obligated to provide a statutory declaration attesting to the payment of subcontractors as part of the claim process.

The court found that the defendant council had not dealt with the progress claim within the legally prescribed time, thereby making the claim effective. The court also determined that the plaintiff was not required to supply a statutory declaration as to payment of subcontractors in this instance, as the focus of the claim was on the amount due for work completed rather than the specific method of payment to subcontractors. The court held that the statutory security of payment provisions and the contractual provisions could be invoked simultaneously in one document, allowing for the progress claim to be made under both frameworks. The court's decision was that the amount of the progress claim was due and payable to the plaintiff by the defendant council.

Orders