Canberra Building and Maintenance Pty Ltd v WNA - [2023] ACTSC 153

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Canberra Building and Maintenance Pty Ltd v WNA Construction Pty Ltd
Citation:	[2023] ACTSC 153
Hearing Date:	23 May 2023
DecisionDate:	22 June 2023
Before:	Curtin AJ
Decision:	(1) Appeal upheld. (2) The Orders of the Magistrates Court dated 16 December 2022 are set aside. (3) In lieu thereof order judgment in favour of the appellant in the sum of $53,504.90. (4) Interest is payable on the sum set out in Order 3 above the rate of interest applying from time to time under the Court Procedures Rules 2006, schedule 2, part 2.2 from 26 April 2020. (5) The respondent is to pay the appellant’s costs of the appeal and of the proceedings below.
Catchwords:	APPEAL – Building & Construction – Payment claim under the Building and Construction Industry (Security of Payment) Act 2009 – whether payment claim was served – whether payment claim contained adequate information about the construction works
Legislation Cited:	Building and Construction Industry (Security of Payment) Act 2009 (ACT) ss 13, 15, 16, 17, 19 Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13, 15, 16, 17 Building and Construction Industry Security of Payment Act 2002 (Vic) ss 14, 23 Building Industry Fairness (Security of Payment) Act 2017 (Qld) ss 17, 68, 75, 76 Magistrates Court Act 1930 (ACT) s 274
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QCA 223 Browne v Dunn (1894) 6 R 67 Commercial Union Assurance Company of Australia Ltd v Ferrcom (1991) 22 NSWLR 389 Coulton v Holcombe (1986) 162 CLR 1 Denbrook Construction Pty Ltd v CBO Developments Pty Ltd [2022] QDC 184 Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62 Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570 Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42 Jemzone Pty Ltd v Trytan Pty Ltd [2002] NSWSC 395 John Holland Pty Limited v Roads and Traffic Authority of New South Wales [2006] NSWSC 874 John Holland Pty Ltd v Cardno MBK (NSW) Pty Ltd [2004] NSWSC 258 Jones v Dunkel (1959) 101 CLR 298 KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd [2019] QSC 178 Marks v Thompson 1 NYS 2d 215 (1937) Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; NSWLR 64 Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2009] QSC 376 Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2011] QSC 376; 1 Qd R 17 Pines Living Pty Ltd v John O’Brien and Walton Construction Pty Limited [2013] ACTSC 156 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 Protectavale Pty…

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: [2023] ACTSC 153
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Canberra Building and Maintenance Pty Ltd (Canberra Building) and WNA Construction Pty Ltd (WNA) over a payment claim for construction work done across 13 development sites. Canberra Building asserted that the payment claim was issued in accordance with the Building and Construction Industry (Security of Payment) Act 2009 (ACT) (SOP Act), WNA did not serve a payment schedule in response, the payment claim remains unpaid, and accordingly Canberra Building was entitled to the amount of that payment claim together with interest. WNA disputed the validity of the payment claim under the SOP Act, asserting that it was not served on WNA and did not adequately identify the construction work to which it related.

The appeal was heard in the Supreme Court of the Australian Capital Territory Court of Appeal, before Curtin AJ. The court found that the appeal was upheld, and the orders of the Magistrates Court were set aside. The court found that the payment claim was adequately descriptive of the construction works, and that the email address used for the payment claim was related to WNA. The court found that there was no failure to comply with s 15(2) of the SOP Act which was patent on the face of Invoice No 217, and that the invoice purported in a reasonable way to identify the particular work. The court found that there was sufficient evidence that someone at WNA had provided the email address to Mr Reid, and that therefore that email address was related to WNA. The court ordered judgment in favour of the appellant in the sum of $53,504.90, with interest payable on the sum from 26 April 2020, and that the respondent is to pay the appellant’s costs of the appeal and of the proceedings below.

Orders