Cosmo Cranes and Rigging Pty Ltd v EQ Constructions Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6

Hearing dates:

3 February 2022

Date of orders:

8 February 2022

Decision date:

08 February 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 42 – 43

Catchwords:

BUILDING AND CONSTRUCTION - two disputed payment claims issued - no payment schedules served within time - whether disputed payment claims claimed work under two or more construction contracts - whether, by reason of not serving payment schedules, respondent is prevented from asserting invalidity in payment claims

PRACTICE AND PROCEDURE - application for summary judgment - proceeding featured mixed claims of debt sourced under Security of Payment legislation, and alternative claims for breach of contract and a quantum meruit - respondent asserts work defective and involved delay - respondent pleads set-off (in statute and in equity) in answer to all claims and cross-claims for unliquidated damages - whether arguable equitable set off may arise against debt claim sourced in statute

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13, 14, 15

Civil Procedure Act 2005 (NSW) s 21

Uniform Civil Procedure Rules 2002 (NSW) r 13.1

Cases Cited:

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QSC 39

Concut Pty Ltd v Worrell (2000) 176 ALR 693

HP Mercantile Pty Ltd v Dierickx (2013) 306 ALR 53; [2013] NSWCA 479

Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (2016) 260 CLR 340

TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93

Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534

Category:

Procedural rulings

Parties:

Cosmo Cranes & Rigging Pty Ltd (plaintiff/cross-defendant)
EQ Constructions Pty Ltd (defendant/cross-claimant)

Representation:

Counsel:
Mr M Langenheim for the plaintiff/cross-defendant
Mr D Hume for the defendant/cross-claimant

Solicitors:
Waring Legal for the plaintiff/cross-defendant
Vincent Young for the defendant/cross-claimant

File Number(s):

2021/00245698

Publication restriction:

Nil

Judgment

INTRODUCTION

1. This proceeding arises from the supply, under hire arrangements, of construction services between the plaintiff and the defendant entered into in and from April 2018. The services related to construction work performed by the defendant at a building site in Parramatta. The services were in the nature of crane hire and related services.

2. By its statement of claim, the plaintiff pleaded three agreements; the first (pleaded at paragraph 3) being a subcontract (the ‘Hire Agreement’) through which a tower crane was supplied. This was a written agreement dated 20 April 2018. It is common ground that the Hire Agreement was a ‘construction contract’ for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the ‘Act’). The plaintiff alleged that the Hire Agreement was varied in April 2021 so that the plaintiff would supply a ‘Maeda’ mobile crane. The defendant denied the alleged variation. In the alternative, the plaintiff pleaded (at paragraph 5E) an agreement comprising the supply of a…