Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA 211 Hearing dates: 3 September 2021 Date of orders: 9 September 2021 Decision date: 09 September 2021 Before: Basten JA at [1];
Macfarlan JA at [31];
Emmett AJA at [33]Decision: (1) Allow the appeal and set aside order (2) made in the District Court on 30 April 2021 and order (2) entered on 17 May 2021.
(2) Give judgment for the appellant in the sum of $175,190.55, being the sum of invoices JSA19293 and JS19794 and interest on those amounts.
(3) Order that the respondent pay the appellant’s costs of the appeal and of the proceedings in the District Court.
Catchwords: BUILDING AND CONSTRUCTION – progress payment claim – payment schedule – email refusing payment until work completed – failure to say why payment withheld – other documents not incorporated – use of contextual material – Building and Construction Industry Security of Payment Act 1999 (NSW), s 14
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 14, 17, 20
Cases Cited: Facade Treatment Engineering Pty Ltd (In liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; 313 FLR 163
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liq) (2019) 99 NSWLR 317; [2019] NSWCA 11
Style Timber Floor Pty Ltd v Krivosudsky (2019) 100 NSWLR 133; [2019] NSWCA 171
Category: Principal judgment Parties: Joye Group Pty Ltd (Appellant)
Cemco Projects Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
N Simpson / S Woodland (Appellant)
R Thrift (Respondent)
LM Legal (Appellant)
Bradbury Legal (Respondent)
File Number(s): 2021/152947 Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Civil
- Citation:
- Date of Decision:
- 30 April 2021
- Before:
- Strathdee DCJ
- File Number(s):
- 2020/184715
Judgment
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BASTEN JA: On 30 July 2019 the appellant, Joye Group Pty Ltd, entered into two subcontracts with the respondent, Cemco Projects Pty Ltd. The first involved the supply and installation of timber flooring; the second involved the installation of tiling, both at a development in Alexandria.
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In the course of the construction work, seven payment claims were made under each contract. In particular, on 27 April 2020 payment claim 7 was made under the timber flooring contract in an amount of $112,043.11. The claim involved an amount of some $59,000 for completion of the original contract work, the balance being identified by reference to four items which were described as “variation work”.
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The following day, 28 April 2020, payment claim number 7 was served under the tiling contract, in an amount of $54,517.65, identifying 10 separate items.
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Section 14(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“Security of Payment Act”) requires that a person on whom a claim is served may provide a “payment schedule” to the claimant within 10 business days…
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- Case
- [2021] NSWCA 211
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the respondent had provided a valid payment schedule within the time prescribed by section 14 of the *Building and Construction Industry Security of Payment Act 1999* (NSW). Specifically, the court had to determine if an email sent by the respondent, which stated that payment would be withheld until certain work was completed, constituted a valid payment schedule despite not explicitly stating the reasons for withholding payment in the manner required by the Act, and whether other documents could be incorporated by reference to form part of a valid payment schedule.
The Court of Appeal found that the email sent by the respondent did not constitute a valid payment schedule. The court reasoned that section 14 of the Act requires a payment schedule to clearly state the amount of the payment to be made, and if that amount is less than the claimed amount, the reasons for withholding payment. The email, while indicating a refusal to pay until further work was done, did not specify an amount to be paid nor did it adequately articulate the reasons for withholding the full amount claimed. The court also held that other documents could not be incorporated by reference to cure the deficiencies in the email, and that the respondent had failed to provide a valid payment schedule within the statutory timeframe.
Consequently, the Court of Appeal allowed the appeal, setting aside the District Court's orders and entering judgment for the appellant in the sum of $175,190.55, plus interest. The respondent was also ordered to pay the appellant's costs of both the appeal and the proceedings in the District Court.
Orders
Orders of the court
(1) Allow the appeal and set aside order (2) made in the District Court on 30 April 2021 and order (2) entered on 17 May 2021.
(2) Give judgment for the appellant in the sum of $175,190.55, being the sum of invoices JSA19293 and JS19794 and interest on those amounts.
(3) Order that the respondent pay the appellant’s costs of the appeal and of the proceedings in the District Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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