Joye Group Pty Limited v Cemco Projects Pty Limited - [2021] NSWDC 151

District Court

New South Wales

Medium Neutral Citation: Joye Group Pty Limited v Cemco Projects Pty Limited [2021] NSWDC 151
Hearing dates: 15 April 2021
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:
(1)   Judgment for the plaintiff against the defendant in the sum of $10,242.36 + $36,080.00 = $46,322.36.
(2)   Judgment for the defendant against the plaintiff with regard to Invoices JSA 19293 and JS 19794.
(3)   Allow the parties to contact my associate within 14 days to relist the matter for argument as to any various orders, interest and costs, if the parties cannot agree.

Catchwords:
ADMINISTRATIVE LAW – what must be disclosed by a payment schedule under the Building and Construction Industry Security of Payment Act 1999- the requirements of a payment schedule- identification of the payment claims – indication of the amount of the payment- reasons for withholding payment

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005

Cases Cited:
Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391
Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452
Johnson v Perez (1988) 166 CLR 351; (1988) 82 ALR 587
Minimax Fire Fighting Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Style Timber Flooring Pty Ltd v Krivosudsky [2019] NSWCA 171

Category: Principal judgment
Parties: Joye Group Pty Limited (Plaintiff)
Cemco Projects Pty Limited(Defendant)
Representation:
Counsel:
Ms S Woodland (Plaintiff)
Ms R Thrift (Defendant)
Solicitors:
Mr C Lee, LM Legal (Plaintiff)
Mr S Mort, Bradbury Legal (Defendant)

File Number(s): 2020/184715
Publication restriction: None

Judgment

By way of Amended Statement of Claim filed 22 June 2020, Joye Group Pty Limited (‘the plaintiff’) seeks payment of 4 payment claims plus interest and costs from Cemco Projects Pty Limited (‘the defendant’). The amounts of the four claims are specified in the Statement of Claim.

BACKGROUND

On 30 July 2019, the defendant entered into two written subcontracts with the plaintiff to subcontract works under its head contract for a project at 2–24 Mitchell Road, Alexandria NSW 2015.
The first subcontract was for the supply and installation of tiling. The second subcontract was for the supply and installation of timber. The payment claims are dealt with under s 14 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’).
These proceedings arise from the defendant’s failure to pay four invoices issued by the plaintiff in March and April 2020 for tile and timber flooring work that the plaintiff performed pursuant to the contracts referred to above.
At the commencement of the trial counsel for the parties handed up a document titled Statement of Agreed Facts, which contain the following:

Invoice JS19774

On 9 April 2020 the plaintiff served a payment claim on the defendant in relation to Invoice JS19774 for tiling work…

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

Case: [2021] NSWDC 151
Decision Date: 30 April 2021

CaseChat Overview and Summary

In the matter of Joye Group Pty Limited versus Cemco Projects Pty Limited, the dispute involved the interpretation of a payment schedule under the Building and Construction Industry Security of Payment Act 1999. The plaintiff, Joye Group Pty Limited, sought to enforce payment for certain invoices, which the defendant, Cemco Projects Pty Limited, had withheld. The case was heard by the Supreme Court of Victoria.

The central legal issue was the adequacy of the payment schedule provided by the defendant under the Act. The plaintiff argued that the payment schedule did not adequately identify the payment claims, indicate the amount of the payment, and provide reasons for withholding payment, as required by the Act. The defendant contended that the payment schedule met the statutory requirements.

The court held that the payment schedule was insufficient because it did not sufficiently identify the payment claims, indicate the amount of the payment, and provide reasons for withholding payment. The schedule was vague and did not allow for proper adjudication under the Act. Consequently, the plaintiff was entitled to judgment for the amount claimed, while the defendant was successful in relation to the specific invoices in question. The court ordered that the plaintiff was to be paid the sum of $46,322.36, minus the amounts related to the two invoices in dispute. The matter was to be relisted for further argument regarding orders, interest, and costs if the parties could not agree within 14 days.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant in the sum of $10,242.36 + $36,080.00 = $46,322.36.

(2) Judgment for the defendant against the plaintiff with regard to Invoices JSA 19293 and JS 19794.

(3) Allow the parties to contact my associate within 14 days to relist the matter for argument as to any various orders, interest and costs, if the parties cannot agree.

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.

Medium Neutral Citation:	Joye Group Pty Limited v Cemco Projects Pty Limited [2021] NSWDC 151
Hearing dates:	15 April 2021
Date of orders:	30 April 2021
Decision date:	30 April 2021
Jurisdiction:	Civil
Before:	Strathdee DCJ
Decision:	(1) Judgment for the plaintiff against the defendant in the sum of $10,242.36 + $36,080.00 = $46,322.36. (2) Judgment for the defendant against the plaintiff with regard to Invoices JSA 19293 and JS 19794. (3) Allow the parties to contact my associate within 14 days to relist the matter for argument as to any various orders, interest and costs, if the parties cannot agree.
Catchwords:	ADMINISTRATIVE LAW – what must be disclosed by a payment schedule under the Building and Construction Industry Security of Payment Act 1999- the requirements of a payment schedule- identification of the payment claims – indication of the amount of the payment- reasons for withholding payment
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005
Cases Cited:	Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391 Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd (2016) 337 ALR 452 Johnson v Perez (1988) 166 CLR 351; (1988) 82 ALR 587 Minimax Fire Fighting Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Style Timber Flooring Pty Ltd v Krivosudsky [2019] NSWCA 171
Category:	Principal judgment
Parties:	Joye Group Pty Limited (Plaintiff) Cemco Projects Pty Limited(Defendant)
Representation:	Counsel: Ms S Woodland (Plaintiff) Ms R Thrift (Defendant) Solicitors: Mr C Lee, LM Legal (Plaintiff) Mr S Mort, Bradbury Legal (Defendant)
File Number(s):	2020/184715
Publication restriction:	None