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Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd

Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd

Case [2023] NSWDC 220 23 June 2023

Summary Judgment

Breach of Contract

Payment Claim

Civil Litigation & Procedure

Commercial Law

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District Court

New South Wales

Medium Neutral Citation: Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd [2023] NSWDC 220
Hearing dates: 20 June 2023
Date of orders: 23 June 2023
Decision date: 23 June 2023
Jurisdiction: Civil
Before: Andronos SC DCJ
Decision:
(1) Amended notice of motion dated 1 March 2023 granted.
(2) Judgment for the plaintiff in the sum of $94,235.24 in respect of the payment claim constituted by Invoice 60, issued by it to the defendant on 25 August 2022.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff
BUILDING AND CONSTRUCTION — Payment claim – Part of proceedings

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), s 8, s 13, s 14, s 15, s 16, s 32
Civil Procedure Act 2005 (NSW), s 21
Interpretation Act 1987 (NSW), s 21
Uniform Civil Procedure Rules 2005, r 13.1, r 13.3, r 19.1

Cases Cited:
Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Chan v Cresden Pty Ltd (1989) 168 CLR 242
Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
HP Mercantile Pty Ltd v Dierckx (2013) 306 ALR 53; [2013] NSWCA 479
Ke Qin Ren v Hong Jiang (2014) 104 ACSR 149; [2014] NSWCA 388
Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93
Vannella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379

Category: Procedural rulings
Parties: Infinity Formwork Group Pty Ltd (plaintiff/applicant on notice of motion)
Adobe Construction Group Pty Ltd (defendant/respondent to notice of motion)
Representation:
Counsel:
Ms A Avery-Williams (plaintiff/applicant on notice of motion)
Mr J Adamopoulos (defendant/respondent to notice of motion)
Solicitors:
Penhall & Co (plaintiff/applicant on notice of motion)
ERA Legal (defendant/respondent to notice of motion)

File Number(s): 2023/00018553
Publication restriction: Nil

District Court

New South Wales

JUDGMENT

This is an application for summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 (UCPR). The application is in respect of part only of a liquidated claim brought by the plaintiff for work performed between February and December 2022. The entire claim is in the sum of $454,496.58; the summary judgment application is in respect of a single payment claim constituted by an invoice in the sum of $94,235.24.
The plaintiff contends that its Invoice No. 60, dated 25 August 2022, in the sum of $94,235.24 (the payment claim), constituted a valid payment claim under s 13(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) in respect of a progress payment to which it was entitled under s 8 of that Act. As no payment schedule was served, and no payment in respect of the payment claim was made,…

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

AGLC: Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd [2023] NSWDC 220
Case: [2023] NSWDC 220
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case before the court involved a dispute between Infinity Formwork Group Pty Ltd, the plaintiff, and Adobe Construction Group Pty Ltd, the defendant. The plaintiff sought judgment in relation to a payment claim under the building and construction contracts. Specifically, the plaintiff claimed the sum of $94,235.24 for work performed under Invoice 60, issued on 25 August 2022. The matter was determined through summary disposal, where the court considered the evidence and arguments presented to decide whether the plaintiff was entitled to the payment claimed.

The primary legal issue the court needed to resolve was whether the plaintiff had met the criteria for summary judgment under the relevant legislation. The court had to determine whether the defendant had any real prospect of successfully defending the claim, and if not, whether the plaintiff was entitled to the amount claimed. Additionally, the court considered whether the plaintiff had complied with all procedural requirements for issuing the payment claim and whether the claim was valid under the building and construction contracts.

In delivering the judgment, the court found that the defendant had not provided any evidence or argument that demonstrated a real prospect of successfully defending the claim. The court held that the plaintiff had complied with all procedural requirements for the payment claim and that the claim was valid under the relevant legislation. Consequently, the court granted the plaintiff's motion and entered judgment in favour of the plaintiff for the sum of $94,235.24. The court confirmed that the defendant's failure to contest the claim justified the summary disposal and the awarding of the full amount claimed to the plaintiff.

Orders

Orders of the court

(1) Amended notice of motion dated 1 March 2023 granted.

(2) Judgment for the plaintiff in the sum of $94,235.24 in respect of the payment claim constituted by Invoice 60, issued by it to the defendant on 25 August 2022.

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.

Citations

AGLC Citation

Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd [2023] NSWDC 220

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 13 of 13 shown

Cosmo Cranes and Rigging Pty Ltd v EQ Constructions Pty Ltd
[2022] NSWDC 6 Para 27

…the defendant, quite properly drew the Court’s attention to the decision of Abadee DCJ in Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6. That decision also concerned an application for summary judgment on a payment claim where statutory rights and common law claims were both advanced. H…
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd
[2020] NSWCA 93 Para 9

…ella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379 at [60] (Henry J); upheld on appeal in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 (Basten, Meagher JJA and Emmett AJA).…
Vanella Pty Ltd v TFM Epping Land Pty Ltd
[2019] NSWSC 1379 Para 9

…ules served under the SOP Act, short points of law or construction may be determined on a final basis: Vannella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379 at [60] (Henry J); upheld on appeal in TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 (Basten, Meagher JJA and Emmett AJA).…
Ren v Jiang
[2014] NSWCA 388 Para 7

…al, such that it would be an abuse of process for the Court to allow the proceedings to continue: Ke Qin Ren v Hong Jiang (2014) 104 ACSR 149 at 158; [2014] NSWCA 388 at [49] (Barrett, Gleeson and Leeming JJA).…
HP Mercantile Pty Ltd v Dierickx
[2013] NSWCA 479 Para 26

…rom a counter claim in that it must operate to preclude the plaintiff from enforcing its claim. In HP Mercantile Pty Ltd v Dierckx (2013) 306 ALR 53; [2013] NSWCA 479, Emmett JA, which whom Beazley P (as her Excellency then was) and Meagher JA agreed, considered:…
Ottavio v Hayvio Pty Ltd
[2011] NSWSC 1125 Para 8

…Summary judgment may be obtained for part of a claim: Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125.…
Agar v Hyde
[2000] HCA 41 Para 7

…ust be a high degree of certainty about the ultimate outcome of the proceedings if it were to go to trial: Agar v Hyde (2000) 201 CLR 552 at 575-576; [2000] HCA 41 at [57] (per Gaudron, McHugh, Gummow and Hayne JJ). The Court must form a view that the claim would fail if permitted to go to trial, such that it wo…
James v Commonwealth Bank of Australia
[1992] FCA 617

…tence of a cross-claim, such that it can be said that the equity of the defendant impeaches the claimant's title to the legal demand being enforced ( James v Commonwealth Bank of Australia (1992) 37 FCR 445 at 457 - 458). 137 For example, where a mortgage is granted to a solicitor as security for costs and the mortgagor client has a cross-clai…
Yapeen Holdings Pty Ltd v Calardu Pty Ltd
[1992] FCA 420

…n be said that the equity of the defendant impeaches the claimant's title to the legal demand being enforced ( James v Commonwealth Bank of Australia (1992) 37 FCR 445 at 457 - 458). 137 For example, where a mortgage is granted to a solicitor as security for costs and the mortgagor client has a cross-claim against t…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25 Para 6

…964] HCA 69. Put another way, it must be clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA 25, or “the case … is so clearly untenable that it cannot possibly succeed”: General Steel Industries Inc at 129-130 (per Barwick CJ).…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 6

…ismiss a claim is to be sparingly invoked: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (per Barwick CJ); [1964] HCA 69. Put another way, it must be clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA…
Dey v Victorian Railways Commissioners
[1949] HCA 1

…the tests application in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and Dey v Victorian Railways Commissioners (1949) 78 CLR 62).…
Chan v Cresdon Pty Ltd
[1989] HCA 63 Para 38

…ich requires the impeachment of the plaintiff’s right to relief, will fall within this formulation. In this respect, see Chan v Cresden Pty Ltd (1989) 168 CLR 242 at 249. In my view, the equitable set-off defence arises under the construction contract and, in the absence of being raised in a payment schedule, is not…

Legislation cited in this decision · 4

Building and Construction Industry Security of Payment Act 1999 (NSW)
8 2 mentions (from Para 2)
Civil Procedure Act 2005 (NSW)
21 2 mentions (from Para 18)
Interpretation Act 1987 (NSW)
21 2 mentions (from Para 22)
Uniform Civil Procedure Rules 2005 (NSW)
13.1 2 mentions (from Para 1)

Medium Neutral Citation:	Infinity Formwork Group Pty Ltd v Adobe Construction Group Pty Ltd [2023] NSWDC 220
Hearing dates:	20 June 2023
Date of orders:	23 June 2023
Decision date:	23 June 2023
Jurisdiction:	Civil
Before:	Andronos SC DCJ
Decision:	(1) Amended notice of motion dated 1 March 2023 granted. (2) Judgment for the plaintiff in the sum of $94,235.24 in respect of the payment claim constituted by Invoice 60, issued by it to the defendant on 25 August 2022.
Catchwords:	CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff BUILDING AND CONSTRUCTION — Payment claim – Part of proceedings
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), s 8, s 13, s 14, s 15, s 16, s 32 Civil Procedure Act 2005 (NSW), s 21 Interpretation Act 1987 (NSW), s 21 Uniform Civil Procedure Rules 2005, r 13.1, r 13.3, r 19.1
Cases Cited:	Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Chan v Cresden Pty Ltd (1989) 168 CLR 242 Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; [1983] HCA 25 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 HP Mercantile Pty Ltd v Dierckx (2013) 306 ALR 53; [2013] NSWCA 479 Ke Qin Ren v Hong Jiang (2014) 104 ACSR 149; [2014] NSWCA 388 Ottavio v Hayvio Pty Ltd [2011] NSWSC 1125 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 Vannella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379
Category:	Procedural rulings
Parties:	Infinity Formwork Group Pty Ltd (plaintiff/applicant on notice of motion) Adobe Construction Group Pty Ltd (defendant/respondent to notice of motion)
Representation:	Counsel: Ms A Avery-Williams (plaintiff/applicant on notice of motion) Mr J Adamopoulos (defendant/respondent to notice of motion) Solicitors: Penhall & Co (plaintiff/applicant on notice of motion) ERA Legal (defendant/respondent to notice of motion)
File Number(s):	2023/00018553
Publication restriction:	Nil