Joye Group Pty Ltd v Cemco Projects Pty Ltd

Joye Group Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the District Court which had dismissed its claim for progress payments under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute concerned a progress payment claim made by the appellant against Cemco Projects Pty Ltd (the respondent) for work undertaken on a construction project. The respondent had failed to provide a valid payment schedule in response to the claim, leading to the appellant seeking judgment for the claimed amount.

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.