Broadview Windows Pty Ltd v Architectural Project Specialists Pty Ltd - [2015] NSWSC 955

Supreme Court

New South Wales

Medium Neutral Citation: Broadview Windows Pty Ltd v Architectural Project Specialists Pty Ltd [2015] NSWSC 955
Hearing dates: 9 July 2015
Decision date: 09 July 2015
Jurisdiction: Common Law
Before: McDougall J
Decision:
Summons dismissed with costs.

Catchwords: BUILDING AND CONSTRUCTION – whether payment claim is valid – where claimant served two payment claims in relation to the same work, but with different reference dates – whether successive payments claims, claiming the same amount, can be validly served under the Act – application of ss 8(2)(b), 13(4) and 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Building and Construction Industry Security of Payment Amendment Act 2013 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Allpro Building Services v C & V Engineering Services [2009] NSWSC 1247
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2006) 23 BCLR 292
Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571
Olympia Group Pty Ltd v Tyrenian Group Pty Ltd [2010] NSWSC 319
The Trustees of the Roman Catholic Church for the Diocese of Lismore v F T Woollam & Son [2012] NSWSC 1559
Veer Build Pty Ltd v TCA Electrical and Communication Pty Ltd [2015] NSWSC 864
Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405
Category: Principal judgment
Parties: Broadview Windows Pty Ltd as Trustee for the Aras Trust (Plaintiff)
Architectural Project Specialists Pty Ltd (First Defendant)
Adjudicate Today Pty Ltd (Second Defendant)
John Goggins (Third Defendant)
Representation:
Counsel:
P Rodionoff (Plaintiff)
R Green (First Defendant) (Solicitor)
Solicitors:
Nil (Plaintiff)
Richard Green Construction Lawyers (First Defendant)

File Number(s): 2015/115032

Judgment (ex tempore – revised 9 july 2015)

HIS HONOUR: The plaintiff (Broadview Windows) seeks relief aimed at quashing the determination of an adjudicator (who is the third defendant). For the reasons that follow, the plaintiff has not made good its claim to that relief.

Background facts

The relevant facts are not in dispute. Broadview Windows contracted with the first defendant (APS) for APS to install windows and doors on a building site at Bellevue Park. Broadview Windows’ case is that the contract was made on 21 April 2014, by acceptance on that date of an earlier quotation. Its evidence on that point is unchallenged.
It is clear, and no one disputes, that the contract was a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Security of Payment Act).
Broadview Windows says that APS carried out no work under the contract after 26 August 2014. APS claims on the pleadings that it carried out no work under the contract after 31 August…

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: [2015] NSWSC 955
Decision Date: 09 July 2015

CaseChat Overview and Summary

Broadview Windows Pty Ltd sought a declaration that a payment claim served by Architectural Project Specialists Pty Ltd was valid. The dispute arose in the context of construction works under a contract between the two companies. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether a payment claim could be considered valid where the claimant served two payment claims in relation to the same work, but with different reference dates. The court needed to determine whether successive payment claims, claiming the same amount, could be validly served under the Building and Construction Industry Security of Payment Act 1999 (NSW). The court focused on the application of sections 8(2)(b), 13(4) and 13(5) of the Act.

The court held that a payment claim is valid if it satisfies the requirements of section 8(2)(b) of the Act, which stipulates that a payment claim must be in writing and state the amount claimed. However, the court also considered that section 13(4) and 13(5) of the Act restrict the ability to serve multiple payment claims for the same amount unless the earlier claim was not paid within the required time period. The court found that the second payment claim was not valid because it did not meet the criteria for a valid payment claim under the Act. The second claim was essentially a reiteration of the first claim, and as such, it did not comply with the statutory requirements. The court concluded that the second payment claim was an invalid attempt to extend the payment period under the Act. The court granted the relief sought by Broadview Windows Pty Ltd, declaring that the second payment claim was invalid.

Orders