John Lyng Commercial Builders Pty Ltd v Carrington International Pty Ltd

[2014] VCC 1635

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST

COMMERCIAL LIST - BUILDING CASES DIVISION

Case No. CI-14-04477

JOHN LYNG COMMERCIAL BUILDERS PTY LTD	Plaintiff
v.
CARRINGTON INTERNATIONAL PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2014
DATE OF JUDGMENT:	26 September 2014
CASE MAY BE CITED AS:	John Lyng Commercial Builders Pty Ltd v. Carrington International Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 1635

REASONS FOR JUDGMENT

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Catchwords: Building contract – Progress claim – Revision of earlier claim – Whether to be regarded as a second claim during the same reference period – Section 14(8) Building and Construction Industry Security of Payment Act 2002 (Vic)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Sedal of Counsel	Kliger Partners
For the Defendant	Mr A. Blakeman of Counsel	JBT Lawyers

HIS HONOUR:

1The plaintiff seeks summary judgment in respect of a payment claim made pursuant to the Building and Construction Industry Security of Payment Act 2002 (Vic). The problem arises because two payment claims were issued, the first on 30 July 2014 and the second on 21 August 2014. In the meantime, the parties followed a process which they had adopted whereby the quantity surveyor engaged by the proprietor’s bank examined the first progress claim and made its assessment of the claim suggesting that two items should be revised down. The contractor accepted this and, in the second payment claim, issued a revised claim taking into account the two items the quantity surveyor said should be revised. This proceeding relates to the second progress claim.

2The first claim dated 30 July 2014 was issued prematurely prusuant to the arrangement between the parties. The contract required claims to be submitted on the last working date of the month. This was the relevant reference date pursuant to the Act. The defendant submits that the second payment claim on 21 Augsut 2014 was a second claim during the same reference period and therefore is an invalid claim because it is contrary to the provisions of s. 14(8) of the Act.

3In my view this defence has no real prospect of succeeding, and therefore judgment should be entered for the plaintiff. The reasons I have reached this view are as follows:

a.The second payment claim was a revised payment claim and, accordingly, should not be regarded as a nullity (see NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd [2013] NSWSC 842 at paragraphs 37-39).

b.Section 14(9) applies to the situation on its clear terms. The second payment claim simply includes the first payment claim, as by that stage no part of the first payment claim had been paid.

c.The defence that is now sought to be raised was not raised by the service by the defendant of a payment schedule in accordance with s. 15. In the circumstances it is not open to the defendant to now raise in this proceeding the alleged deficiency with the second payment claim as a matter of defence.

4The second payment claim was in the sum of $582,471.48 plus GST on 3 September 2014. The defendant paid $439,337.27 plus GST. The shortfall which includes GST is $157,447.63.

5There will be judgment for the plaintiff against the defendant that the defendant pay to the plaintiff the sum of $157,447.63 together with interest pursuant to statute from 4 September 2014 to today of $1,041.74, total judgment $158,489.37.

6The defendant must pay the plaintiff’s costs of the proceeding to be assessed by the Costs Court in default of agreement.

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Certificate

I certify that these 2 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 29 September 2014.

Dated: 29 September 2014

Olivia Bramwell    

Associate to His Honour Judge Anderson