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Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd

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New South Wales

Court of Appeal

CITATION: Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 5 September 2006

JUDGMENT DATE:
19 September 2006

JUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Hunt AJA at 65

DECISION: 1. Appeal dismissed. 2. Falgat to pay Equity's costs of the application for leave and appeal.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS - Progress payments - Payment claims - Whether successive payment claims, claiming the same amount, can be served - Payment schedules - Time limit for provision of payment schedules - Whether adjudication application can be made if payment schedule provided outside the time limit - Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation - Effect of s.29 of the Acts Interpretation Act 1901 (Cth) - Whether "provide" means anything different from "serve" in the Building & Construction Industry Security of Payment Act 1999, and is governed by s.31 of that Act.

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s.29
Building Construction Industry Security of Payment Act 1999 (NSW), SS.13, 14, 15, 17 and 31
Corporations Act 2001 (Cth), s.109X
Evidence Act 1995 (NSW), s.160

CASES CITED: Brodyn Pty. Limited v. Davenport [2004] NSWCA 394, (2004) 61 NSWLR 421
Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Australia) Pty. Limited [2003] NSWSC 903
Howship Holdings Pty. Limited v. Leslie (1996) 41 NSWLR 542
Inasmuch Community Inc. v. Bright [2006] NSWCA 99
Mohamed v. Farah [2004] NSWSC 482
Nair v. Minister for Immigration & Multicultural Affairs [2000] FCA 1305
Pacific General Securities Limited v. Soliman & Sons Pty. Limited [2005] NSWCA 378
Taylor Projects Group Pty. Limited v. Brick Department Pty. Limited [2005] NSWSC 439
The Guardian of the Parish of Brighton v. The Guardians of Strand Union [1891] 2 QB 156

PARTIES: Falgat Constructions Pty. Limited - claimant
Equity Australia Corporation Pty. Limited - opponent

FILE NUMBER(S): CA 40804/05

COUNSEL: Ms. V. Culkoff for the claimant
Mr. M. Rudge SC with Mr. G.A. Sirtes for opponent

SOLICITORS: Julie A. Orsini, Lilyfield for claimant
Stephen Wawn & Associates, Edgecliff for opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 496/05

LOWER COURT JUDICIAL OFFICER: Nielson DCJ

LOWER COURT DATE OF DECISION: 10 August 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

CA 40804/05
DC 496/05

HANDLEY JA
HODGSON JA
HUNT AJA
Tuesday 19 September 2006

FALGAT CONSTRUCTIONS PTY.LTD. V. EQUITY AUSTRALIA CORPORATION PTY.LTD.

Headnote

FACTS
Equity entered into a construction contract for Falgat to convert a building on Equity’s property in Bronte into townhouses. On 13 October 2004, Falgat served on Equity a payment claim under the Building and Construction Industry Security of Payment Act 1999. Section 14 of that Act required Equity to provide a payment schedule to Falgat on or before 27 October 2004. Falgat brought proceedings against Equity claiming the amount in the…

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: [2006] NSWCA 259
Decision Date: 19 September 2006

CaseChat Overview and Summary

Falgat Constructions Pty Ltd (Falgat) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court concerning a dispute arising under the *Building and Construction Industry Security of Payment Act 1999* (NSW) (the Act). The dispute involved Falgat's entitlement to progress payments and the validity of payment claims and schedules served by the parties. Equity Australia Corporation Pty Ltd was the respondent.

The primary legal issues before the Court of Appeal were whether successive payment claims, which sought to recover the same amount, could be validly served under the Act. Further, the court considered whether a payment schedule provided outside the statutory time limit rendered an adjudication application invalid, and whether section 109X of the *Corporations Act 2001* (Cth) applied to the provision of a payment schedule to a corporation. The court also examined the meaning of "provide" as distinct from "serve" within the context of the Act, and whether section 31 of the Act governed this aspect.

The Court of Appeal held that successive payment claims, even if claiming the same amount, could be validly served under the Act. It further determined that a payment schedule provided outside the statutory time limit did not invalidate a subsequent adjudication application. The court found that section 109X of the *Corporations Act 2001* (Cth) did not apply to the provision of a payment schedule to a corporation, and that the term "provide" in the Act was not intended to have a different meaning from "serve" and was governed by section 31 of the *Building and Construction Industry Security of Payment Act 1999* (NSW).

The appeal was dismissed, and Falgat was ordered to pay Equity's costs of the application for leave and the appeal.

Orders

Orders of the court

1. Appeal dismissed. 2. Falgat to pay Equity's costs of the application for leave and appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	5 September 2006
JUDGMENT DATE:	19 September 2006
JUDGMENT OF:	Handley JA at 1; Hodgson JA at 2; Hunt AJA at 65
DECISION:	1. Appeal dismissed. 2. Falgat to pay Equity's costs of the application for leave and appeal.
CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS - Progress payments - Payment claims - Whether successive payment claims, claiming the same amount, can be served - Payment schedules - Time limit for provision of payment schedules - Whether adjudication application can be made if payment schedule provided outside the time limit - Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation - Effect of s.29 of the Acts Interpretation Act 1901 (Cth) - Whether "provide" means anything different from "serve" in the Building & Construction Industry Security of Payment Act 1999, and is governed by s.31 of that Act.
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth), s.29 Building Construction Industry Security of Payment Act 1999 (NSW), SS.13, 14, 15, 17 and 31 Corporations Act 2001 (Cth), s.109X Evidence Act 1995 (NSW), s.160
CASES CITED:	Brodyn Pty. Limited v. Davenport [2004] NSWCA 394, (2004) 61 NSWLR 421 Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Australia) Pty. Limited [2003] NSWSC 903 Howship Holdings Pty. Limited v. Leslie (1996) 41 NSWLR 542 Inasmuch Community Inc. v. Bright [2006] NSWCA 99 Mohamed v. Farah [2004] NSWSC 482 Nair v. Minister for Immigration & Multicultural Affairs [2000] FCA 1305 Pacific General Securities Limited v. Soliman & Sons Pty. Limited [2005] NSWCA 378 Taylor Projects Group Pty. Limited v. Brick Department Pty. Limited [2005] NSWSC 439 The Guardian of the Parish of Brighton v. The Guardians of Strand Union [1891] 2 QB 156
PARTIES:	Falgat Constructions Pty. Limited - claimant Equity Australia Corporation Pty. Limited - opponent
FILE NUMBER(S):	CA 40804/05
COUNSEL:	Ms. V. Culkoff for the claimant Mr. M. Rudge SC with Mr. G.A. Sirtes for opponent
SOLICITORS:	Julie A. Orsini, Lilyfield for claimant Stephen Wawn & Associates, Edgecliff for opponent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 496/05
LOWER COURT JUDICIAL OFFICER:	Nielson DCJ
LOWER COURT DATE OF DECISION:	10 August 2005
LOWER COURT MEDIUM NEUTRAL CITATION:	Not applicable