Kitchen Xchange v Formacon Building Services

In the matter of Kitchen Xchange Pty Ltd v Formacon Building Services Pty Ltd, the dispute centred around the validity of payment claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW). Kitchen Xchange, the claimant, had served two payment claims for the same reference date to Formacon Building Services, the defendant. The validity of these claims was challenged by Formacon, leading to the court's examination of the statutory provisions governing the submission of payment claims.

The court was required to determine whether the service of the payment claims was valid despite being served in breach of section 13(5) of the Act, which prohibits the claimant from serving more than one payment claim in relation to a particular reference date. Additionally, the court needed to consider whether the claimant's unilateral withdrawal of one of the claims was effective, and whether the absence of a supporting statement in the form prescribed by regulations rendered the service of the payment claims invalid. The court had to decide if the requirement to include a supporting statement was jurisdictional, and if section 13(7) of the Act was intended to invalidate the service of the payment claim.

The court found that the claimant's withdrawal of one of the payment claims was not effective as it was not consensual, and there was nothing to indicate that the claimant no longer relied on the withdrawn claim. The court held that section 13(5) was not jurisdictional and therefore did not invalidate the payment claims. Furthermore, the court determined that the requirement to include a supporting statement in the prescribed form was not jurisdictional, and the absence of such a statement did not render the service of the payment claims invalid. The court also held that the requirement to include a supporting statement was not intended to invalidate the service of the payment claim. The court exercised its discretion to withhold relief, considering the conduct of the parties, the relatively small amount of the claim, and the jurisdiction of the Local Court.