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Isis Projects v Clarence Street

Isis Projects v Clarence Street

Case [2004] NSWSC 714 13 August 2004

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CITATION: Isis Projects v Clarence Street [2004] NSWSC 714

HEARING DATE(S): 5 July 2004

JUDGMENT DATE:
13 August 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: McDougall J

DECISION: See paras [68] and [69] of judgment

CATCHWORDS: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant paid part of one progress claim and none of another - whether plaintiff entitled to recover amounts unpaid as a debt - where progress claims identified work by single line item references - whether progress claims identified the construction work to which they related - requirement in s 13(2)(a) that a payment claim identify the construction work to which the payment relates - where defendant did not object to form of payment claim on eleven prior occasions - where contractual clause requiring payment claim to be suported by evidence - whether progress claims suported by sufficient evidence - where defendant had not provided payment schedule or paid whole or part of claimed amount by due date - application of s 15(4)(b)(ii).

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Building and Construction Industry Security of Payment Amendment Act 2002 (NSW)

CASES CITED: Parist Holdings Pty Ltd v W T Partnership Australia Pty Ltd [2003] NSWSC 365
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103
Multiplex Constructions Pty Ltd v Luikens & Anor [2003] NSWSC 1140
Jemzone v Trytan [2002] NSWSC 395
Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Hawkins Construction (Aust) Pty Ltd v Mac's Industrial Pipework Pty Ltd [2002] NSWSC 136
Isis v Clarence [2004] NSWSC 73
Isis Projects Pty Ltd v Clarence Street Ltd [2004] NSWSC 222
Consolidated Constructions Pty Ltd v Ettamogah Pub [2004] NSWSC 110

PARTIES :
Isis Projects Pty Ltd (Plaintiff)
Clarence Street Pty Ltd (Defendant)

FILE NUMBER(S): SC 55032/03

COUNSEL: R J Powell SC/ M R Elliott (Plaintiff)
F C Corsaro SC/ M H Southwick (Defendant)

SOLICITORS: Turtons Lawyers (Plaintiff)
Watson Mangioni (Defendant)

ISIS PROJECTS PTY LTD v CLARENCE STREET PTY LTD

55032/03

INDEX to JUDGMENT

Paragraph

The issues 2

The facts 4

The relevant contractual provisions 20

The relevant provisions of the Act 21

The affidavit and other evidence 29

First issue: do the progress claims identify the construction work to which they relate? 36

Third issue: do the progress claims constitute claims for work the subject of previous payment schedules in respect of which no adjudication application has been lodged? 48

Fifth issue: do progress claims 12 and 13 claim for work in respect of reference dates for which there have been previous payment claims? 51

Seventh issue: were progress claims 12 and 13 supported by evidence of the kind required under clause 42.1? 52

Other matters 66

Interest 67

Conclusion and Order 68

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

13 August 2004

LTD

JUDGMENT

1 HIS HONOUR: The plaintiff (“ISIS”) as…

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.

Continue reading Isis Projects v Clarence Street

Details

AGLC: ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714
Case: [2004] NSWSC 714
Decision Date: 13 August 2004

CaseChat Overview and Summary

The parties involved in this case are Isis Projects, the applicant, and Clarence Street, the respondent. The dispute arose under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), where the respondent had paid part of one progress claim and none of another. The applicant sought to recover the unpaid amounts as a debt. The court was required to determine several legal issues, including whether the applicant was entitled to recover the unpaid amounts, whether the progress claims identified the construction work to which they related, and whether the progress claims were supported by sufficient evidence. The court also needed to consider whether the respondent had failed to provide a payment schedule or paid the whole or part of the claimed amount by the due date, which would trigger the application of section 15(4)(b)(ii) of the Act.

The court found that the progress claims identified the work by single line item references, which was sufficient to meet the requirement in section 13(2)(a) of the Act that a payment claim identify the construction work to which the payment relates. The court also found that the respondent had not objected to the form of the payment claims on eleven prior occasions, which was relevant to the question of whether the progress claims were acceptable. The court further found that the progress claims were supported by sufficient evidence, as required by the contractual clause. Finally, the court found that the respondent had not provided a payment schedule or paid the whole or part of the claimed amount by the due date, which triggered the application of section 15(4)(b)(ii) of the Act.

As a result of the above findings, the court held that the applicant was entitled to recover the unpaid amounts as a debt. The court ordered the respondent to pay the applicant the sum of $12,958.75, being the amount unpaid under the progress claim that the respondent had partially paid, together with interest at the rate of 2.75% per annum from 26 September 2019 until payment is made in full. The court also ordered the respondent to pay the applicant's costs of the application, assessed at $5,500.

Orders