Isis v Clarence - [2004] NSWSC 73

CITATION: Isis v Clarence [2004] NSWSC 73

HEARING DATE(S): 03/11/2003

JUDGMENT DATE:
23 February 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Master Macready at 1

DECISION: Motion of the plaintiff filed 26 September 2003 be dismissed with costs.

CATCHWORDS: Practice & Procedure - Summary judgment application pursuant to Pt 15 r 2 of Supreme Court Rules - motion dismissed. - Contract Law - Construction contract - progress claims issued pursuant to Building & Construction Industry Security of Payments Act. Whether payment claims could be made between practical completion and the expiration of the defects liability period. Held no triable issue. Whether progress claims were supported by the evidence and information required by the contract and the Act. Held to be a triable issue - whether progress claims made in conravention of s13(5) of the Act. Held no triable issue.

CASES CITED: Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576
Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238

PARTIES :
Isis Projects Pty Ltd v Clarence Street Pty Ltd

FILE NUMBER(S): SC 55032/2003

COUNSEL: Mr RJ Powell SC for plaintiff
Mr RJH Darke SC and Mr M Southwick for defendant

SOLICITORS: Turtons Lawyers for plaintiff
Watson Mangioni for defendant

- 1 -

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

Master Macready

Monday 23 February 2004

55032/2003 Isis Projects Pty Ltd v Clarence Street Pty Ltd

JUDGMENT

1 Master: This is the hearing of the plaintiff’s notice of motion filed 26 September 2003 in which the plaintiff seeks summary judgment pursuant to Part 15 rule 2 of the Supreme Court Rules. Judgment is sought in the sum of $770,347.11 plus interest.

Background

2 On 17 May 2002 plaintiff entered into a construction contract with the defendant for the refurbishment and fit out of an office building at 50 Clarence Street Sydney. The contract includes the general conditions of contract (AS 2124 -- 1992).

3 The plaintiff’s claims in the summons are for statutory progress claims under the Building and Construction Industry Security of Payments Act 1999 (NSW)(the Act) which was recently amended on 3 March 2003. The relevant progress claims were issued after the commencement of the amendments. The claims in the summons are not made pursuant to the plaintiff’s contractual entitlement.

4 Practical completion in respect of the contract was achieved on 4 April 2003 at the request of the plaintiff company and the certificate was issued on 14 April 2003.

5 On 15 May 2003 the plaintiff served a progress claim number 12 on the defendant claiming the sum off $1,702,579.34. Under the terms of the contract this progress claim would be due on 28 June 2003. Between 26 June 2003 and 4 July 2003 various payments were made in relation to this progress claim amounting to $984,225.85 leaving outstanding the sum of $718,353.45. No payment schedule under the Act was supplied by the defendant.

6 On 15 July…

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 v Clarence

Details

AGLC: Isis v Clarence [2004] NSWSC 73
Case: [2004] NSWSC 73
Decision Date: 23 February 2004

CaseChat Overview and Summary

The case of Isis v Clarence dealt with the issue of summary judgment in relation to progress claims issued under the Building and Construction Industry Security of Payments Act. The parties involved were Isis, the claimant, and Clarence, the respondent. The dispute arose from the issuance of progress claims between the practical completion of a construction project and the expiration of the defects liability period. The matter was heard in the Supreme Court.

The primary legal issues that the court needed to decide were whether the progress claims could be made within the specified timeframe and whether they were adequately supported by evidence and information as required by both the contract and the Act. The court also considered whether the issuance of these claims contravened section 13(5) of the Act.

The court held that there was no triable issue regarding the timeframe for issuing progress claims or whether they contravened section 13(5) of the Act. However, it found that there was a triable issue as to whether the progress claims were properly supported by the evidence and information required by the contract and the Act. Consequently, the motion for summary judgment was dismissed, leaving the merits of the claims to be determined at a trial. The court’s reasoning hinged on the necessity for sufficient evidentiary support for the claims, which could not be conclusively determined on the papers alone.

Orders