Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 2)

Denham Constructions Pty Ltd initiated proceedings against the Islamic Republic of Pakistan, alleging that it was owed debt as a result of Pakistan's failure to serve a payment schedule in response to a payment claim. The dispute arose from the construction of the Pakistani High Commission in Canberra. The case was heard in the Federal Court of Australia. The plaintiff claimed that the defendant's email, which was sent in response to the payment claim, did not constitute a payment schedule as required by the Building and Construction Industry (Security of Payment) Act 2009 (ACT). The plaintiff further argued that the payment claim was not invalid under s 15(5) of the Act, which applies where the amounts claimed relate to work or entitlements under the contract which arose prior to the date of the progress claim.

The court found that the email did not comply with the requirements of ss 16(2) and (3) of the Act and therefore was not a payment schedule. The court also found that the progress claim was not invalid under s 15(5) of the Act, as the contract provided for monthly progress payments. The court held that repeating variation claims previously accepted or rejected in an earlier payment claim was not an abuse of process, as the claim could be made again unless it had been the subject of adjudication. Similarly, adjusting the costs arising from extension of times claims was not an abuse of process. The court also found that the Building and Construction Industry (Security of Payment) Act 2009 (ACT) applied to building work on the Pakistani High Commission, as the restrictions on the Territory's legislative power under self-government legislation did not apply. The Commonwealth power to make laws with respect to National Land did not amount to a qualification on powers given under s 22 of the Constitution.

The plaintiff was ordered to bring in short minutes to give effect to the reasons.