Hynash Constructions Pty Ltd v BRP Industries Pty Ltd

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.