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Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd

Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd

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Case Copied 12 October 2018 33 min read

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd
Citation:	[2018] ACTSC 282
Hearing Date:	9 May 2018
DecisionDate:	12 October 2018
Before:	McWilliam AsJ
Decision:	1. The application is dismissed. 2. The plaintiff is to pay the first defendant’s costs.
Catchwords:	BUILDING AND CONSTRUCTION – Building and Construction Industry (Security of Payment) Act 2009 (ACT) – validity of payment claim – whether work carried out under a contract such as to enliven the statutory regime – whether a second payment claim was served in respect of the same reference date under contract
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry (Security of Payment) Act 2009 (ACT) ss 6, 10, 15, 19, 27, 38, 43 Interpretation Act 1987 (NSW) Legislation Act 2001 (ACT) Supreme Court Act 1933 (ACT) s 34B
Cases Cited:	Broadview Windows Pty Ltd v Architectural Project Specialists Pty Ltd [2015] NSWSC 955 Brodyn Pty Limited t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 294; 61 NSWLR 421 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Creative Building Services Pty Ltd v TIO Air Conditioning Pty Ltd[2016] ACTSC 367 Denham Constructions project Company 810 Pty Ltd v Smithies & Anor; Denham Constructions Project Company 810 Pty Ltd v Risgalla & Anor [2014] ACTSC 169 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69, 74 NSWLR 190 Estate Property Holdings v Barclay Mowlem Construction Limited [2004] NSWCA 393; 61 NSWLR 515 Falco’s Pty Ltd v AB Developments (Australia) Pty Ltd [2017] NSWSC 1320 Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2005] NSWCA 49; 62 NSWLR 385 Fernandes Constructions Pty Ltd v Tahmoor Coal Pty Ltd (trading as Centennial Coal)[2007] NSWSC 381 Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571 Levadetes Pty Ltd v Iberian Artisans Pty Ltd [2009] NSWSC 641 Perform (NSW) Pty Ltd v Mev-Aust Pty Ltd (trading as Novatec Construction Systems) [2009] NSWSC 416 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] NSWCA 151; 95 NSWLR 82 Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152 Southern Han Breakfast Point Pty Ltd (in liquidation) v Lewence Construction Pty Ltd [2016] HCA 52; 260 CLR 340 Veer Build Pty Ltd v TCA Electrical and Communication Pty Ltd [2015] NSWSC 864
Parties:	Canberra Drilling Rigs Pty Ltd (ACN 608 411 972) (Plaintiff) Haides Pty Ltd (ACN 158 994 257) (First Defendant) Max Tonkin (Second Defendant)
Representation:	Counsel Mr D Weinberger (Plaintiff) Mr B Katekar (First Defendant)
Solicitors Chamberlains Law Firm (Plaintiff) WMG Legal (First Defendant)
File Number:	SC 493 of 2017

The plaintiff in this proceeding, Canberra Drilling Rigs Pty Ltd, is in the business of performing excavation and earthmoving works for commercial developments. In February or March 2016, it was engaged by…

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: [2018] ACTSC 282
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd involved a dispute between a subcontractor, Canberra Drilling Rigs, and a principal contractor, Haides Pty Ltd. The dispute centred on the validity of a payment claim made by the subcontractor under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). Specifically, the case addressed whether the work in question was carried out under a contract that activated the statutory payment regime, and whether a second payment claim was validly served for the same reference date under the contract.

The primary legal issues that the court had to resolve were whether the payment claim was validly served under the statutory regime and if the second payment claim for the same reference date was compliant with the Act. The court examined the terms of the contract, the nature of the work performed, and the timeliness and content of the payment claims. The subcontractor argued that the payment claim was valid and that the second claim was a legitimate attempt to clarify the details of the original claim. Conversely, the principal contractor contended that the initial payment claim was defective and that the second claim did not comply with the statutory requirements.

The court found that the work performed by the subcontractor was indeed carried out under a contract that triggered the provisions of the Security of Payment Act. However, it ruled that the initial payment claim was invalid due to its lack of detail and failure to comply with the statutory notice requirements. Furthermore, the court determined that the second payment claim, while an attempt to rectify the initial claim, was also invalid as it was not served within the prescribed time frame. Consequently, the court dismissed the application and ordered the subcontractor to pay the principal contractor’s costs.

Orders

Orders of the court

1. The application is dismissed.

2. The plaintiff is to pay the first defendant’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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