Fabtech Aust P/L v Exact Contracting P/L - [2017] SADC 44

District Court of South Australia
(Civil: Application)
FABTECH AUST P/L v EXACT CONTRACTING P/L
[2017] SADC 44
Judgment of His Honour Auxiliary Judge Muecke
28 April 2017
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - PAYMENT CLAIMS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH - GENERAL PRINCIPLES
Application for summary judgment under the Building and Construction Industry Security of Payment Act 2009 (SA) – whether Exact provided a “payment schedule” to Fabtech’s “payment claim”.
Held: Exact’s email to Fabtech dated 5 August 2016 was not a payment schedule that complied with the Act. Estoppel and severance arguments not allowed. Judgment for Fabtech in the sum of $313,959.48.
Building and Construction Industry Security of Payment Act 2009 (SA) s 4, s 8, s 13, s 15(2)(a)(i), s 15(4)(b)(ii), s 33; Evidence Act 1929 (SA) s 67C, referred to.
Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716; Built Environs Pty Ltd v Tali Engineering Pty Ltd & Ors [2013] SASC 84; Façade Treatment Engineering Ltd v Brookfield Multiplex Constructions Pty Ltd (2015) 294 FLR 141; Linke Developments Pty Ltd v 21st Century Developments Pty Ltd (2014) 121 SASR 425, considered.

FABTECH AUST P/L v EXACT CONTRACTING P/L
[2017] SADC 44
Civil: Application

MUECKE ADCJ: This is an application for summary judgment for $367,918.89 plus GST ($404,710.78).
On 21 September 2016 the plaintiff, Fabtech Australia Pty Ltd (“Fabtech”), filed in this Court a Summons and Statement of Claim naming Exact Contracting Pty Ltd (“Exact”) as the defendant.
In its claim Fabtech stated that it carries on the business of design, supply and installation of geomembrane liners, covers and tanks. It stated that Exact carries on the business of civil construction.
Fabtech alleged that on or around 23 March 2016, it and Exact entered into a written contract under which it undertook to supply and install a liner, underlay material and undertake ballast construction for a 700ML dam constructed to hold water harvested from several sources at Seppeltsfield Wines (“the Contract”). It alleged that the Contract was a “construction contract” as defined in s 4 of the Building and Construction Industry Security of Payment Act 2009 (SA) (“the Act”).
Fabtech alleged that pursuant to s 8 of the Act it was entitled to progress payments under the Contract. It alleged that pursuant to s 13 of the Act it, as a person who is or who claims to be entitled to a progress payment, may serve a payment claim on the person who, under the contract, is or may be liable to make the payment.
Fabtech alleged that, on 29 July 2016, it served on Exact a payment claim dated 28 July 2016 in the sum of $367,918.89 plus GST ($404,710.78 including GST) (“Payment Claim”).
Fabtech alleged that, pursuant to s 14 of the Act, Exact was entitled to provide a payment schedule, in reply to its…

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: [2017] SADC 44
Decision Date: 28 April 2017

CaseChat Overview and Summary

In the case of Fabtech Australia P/L v Exact Contracting P/L, the primary dispute revolves around the interpretation and application of the Building and Construction Industry Security of Payment Act 2009 (SA). Fabtech, the applicant, sought summary judgment against Exact, the respondent, asserting that Exact failed to provide an adequate payment schedule in response to Fabtech's payment claim. The case was heard in the South Australian Civil and Administrative Tribunal (SACAT).

The central legal issue in this case was whether Exact’s response to Fabtech's payment claim constituted a "payment schedule" as required by the Security of Payment Act. Specifically, the court needed to determine whether the response provided by Exact sufficiently identified and addressed the payment claim, including any disputes regarding the quantum of payment or the reasons for withholding payment. This interpretation involved a purposive approach to the Act, focusing on the legislative intent to expedite the payment process within the building and construction industry.

The court examined the statutory language and the legislative purpose behind the requirement for a payment schedule. It held that Exact’s response did not adequately identify and address the payment claim as mandated by the Act. The court emphasised the necessity for a payment schedule to clearly outline the reasons for any dispute and the quantum of payment being disputed. Consequently, the court found that Exact failed to comply with the statutory requirements and granted Fabtech's application for summary judgment.

Orders