Hynash Constructions Pty Ltd v BRP Industries Pty Ltd - [2025] NSWCA 14

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14
Hearing dates: 13 February 2025
Decision date: 19 February 2025
Before: Bell CJ at [1]
Adamson JA at [2]
Basten AJA at [47]
Decision:
(1)   To the extent required, refuse leave to appeal.
(2)   If leave is not required, dismiss the appeal.
(3)   Order the applicant/appellant to pay the respondent’s costs.

Catchwords:
APPEALS — application for leave to appeal — where applicant sought reduction of amount in payment claim served by respondent on account of an upfront payment made before the payment claim was served — whether defence alleging upfront payment as reduction was a defence prohibited by Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(ii) or whether it raised a matter which was required to be taken into account to determine the unpaid portion of the claimed amount — leave, if required, refused — otherwise appeal dismissed

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 13, 14, 15, 16, 17, 20, 22, 23
District Court Act 1973 (NSW), s 127
Trade Practices Act 1974 (Cth), s 52

Cases Cited:
Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238
Cheng v Motor Yacht Sales Australia Pty Ltd (t/as Boutique Boat Company) (2002) 108 NSWLR 342; [2022] NSWCA 118
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69
Grave v Blazevic Holdings Pty Ltd (2010) 79 NSWLR 132; [2010] NSWCA 324
Kennedy Civil Contracting Pty Ltd (subject to deed of company arrangement) v Linx Constructions Pty Ltd [2024] NSWCA 243
Kennedy Civil Contracting Pty Ltd (subject to deed of company arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366

Category: Principal judgment
Parties: Hynash Constructions Pty Ltd (Applicant)
BRP Industries Pty Ltd (Respondent)
Representation:
Counsel:
D Byrne / A Sivanathan (Applicant)
M Sheldon / R Harvey (Respondent)
Solicitors:
Hamilton Locke (Applicant)
Finlaysons Lawyers (Respondent)

File Number(s): 2024/357916
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392

Date of Decision:

2 September 2024

Before:

Russell SC DCJ

File Number(s):

2024/61843

HEADNOTE

[This headnote is not to be read as part of the judgment]

This case concerns an attempt by the applicant, Hynash Constructions Pty Ltd (Hynash) to set-off an upfront payment, made under a construction contract, against a claimed amount under a payment claim for progress payment served on it by the respondent, BRP Industries Pty Ltd (BRP), in circumstances where Hynash failed to respond to the payment claim with a payment schedule.

In early 2022, Bathurst Regional Council engaged Hynash as head contractor for the Bathurst Stormwater Harvesting #3198 Project. On 22 December 2022, Hynash subcontracted part of the works to BRP. On 5 January 2023, Hynash made an upfront payment to BRP of 10% of 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: [2025] NSWCA 14
Decision Date: 19 February 2025

CaseChat Overview and Summary

Hynash Constructions Pty Ltd (the applicant) sought leave to appeal a decision concerning a payment claim made by BRP Industries Pty Ltd (the respondent) under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The core of the dispute revolved around whether an upfront payment made by the applicant prior to the service of the payment claim could be considered as a reduction to the amount claimed, or if such a defence was prohibited by the Act.

The central legal issue before the court was the interpretation of section 15(4)(b)(ii) of the Act. Specifically, the court had to determine whether a defence alleging an upfront payment as a reduction to a payment claim constituted a defence prohibited by that section, or alternatively, whether it raised a matter that was a necessary consideration for determining the unpaid portion of the amount claimed.

The court reasoned that the applicant's argument regarding the upfront payment was not a defence prohibited by section 15(4)(b)(ii). Instead, it was a matter that needed to be taken into account to ascertain the actual unpaid amount due under the contract. Consequently, the court concluded that leave to appeal was required, and it was refused. If leave was not required, the appeal was dismissed. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) To the extent required, refuse leave to appeal.

(2) If leave is not required, dismiss the appeal.

(3) Order the applicant/appellant to pay the respondent’s costs.

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.

Medium Neutral Citation:	Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14
Hearing dates:	13 February 2025
Decision date:	19 February 2025
Before:	Bell CJ at [1] Adamson JA at [2] Basten AJA at [47]
Decision:	(1) To the extent required, refuse leave to appeal. (2) If leave is not required, dismiss the appeal. (3) Order the applicant/appellant to pay the respondent’s costs.
Catchwords:	APPEALS — application for leave to appeal — where applicant sought reduction of amount in payment claim served by respondent on account of an upfront payment made before the payment claim was served — whether defence alleging upfront payment as reduction was a defence prohibited by Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(ii) or whether it raised a matter which was required to be taken into account to determine the unpaid portion of the claimed amount — leave, if required, refused — otherwise appeal dismissed
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 13, 14, 15, 16, 17, 20, 22, 23 District Court Act 1973 (NSW), s 127 Trade Practices Act 1974 (Cth), s 52
Cases Cited:	Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238 Cheng v Motor Yacht Sales Australia Pty Ltd (t/as Boutique Boat Company) (2002) 108 NSWLR 342; [2022] NSWCA 118 Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69 Grave v Blazevic Holdings Pty Ltd (2010) 79 NSWLR 132; [2010] NSWCA 324 Kennedy Civil Contracting Pty Ltd (subject to deed of company arrangement) v Linx Constructions Pty Ltd [2024] NSWCA 243 Kennedy Civil Contracting Pty Ltd (subject to deed of company arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366
Category:	Principal judgment
Parties:	Hynash Constructions Pty Ltd (Applicant) BRP Industries Pty Ltd (Respondent)
Representation:	Counsel: D Byrne / A Sivanathan (Applicant) M Sheldon / R Harvey (Respondent) Solicitors: Hamilton Locke (Applicant) Finlaysons Lawyers (Respondent)
File Number(s):	2024/357916
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392 Date of Decision: 2 September 2024 Before: Russell SC DCJ File Number(s): 2024/61843