Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd

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.