Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd - [2016] NSWSC 334

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Hearing dates: 22 March 2016; written submissions 24 March 2016
Decision date: 31 March 2016
Jurisdiction: Equity
Before: Meagher JA
Decision:
1. Dismiss Removals’ application under s 459G of the Corporations Act 2001 to set aside the statutory demand dated 11 February 2016.
2. Amended summons otherwise dismissed.
3. Order the amount of $382,015.41 paid into Court by Removals be released and paid to Dynabuild.
4. Order Removals pay Dynabuild’s costs of the proceedings.
5. Make no order as to the costs of the second and third defendants and grant liberty to them to apply within 14 days.
6. Direct Dynabuild to notify the second and third defendants of the making of these orders.

Catchwords: BUILDING AND CONSTRUCTION – adjudication of payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether payment claim should be set aside – where payment claim made for same amount and works as earlier payment claim and no works completed after earlier claim – where building contract allowed for later reference date – whether two payment claims made in relation to same reference date contrary to s 13(5) – where earlier payment claim not accompanied by supporting statement contrary to s 13(7) – whether earlier payment claim served for purpose of s 13(5) – whether payment claim made in contravention of s 13(8)
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 5, 8, 9, 13, 14, 15, 17, 24
Corporations Act 2001 (Cth), ss 459E, 459F, 459G
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393
Clyne v Deputy Commissioner of Taxation (Cth) [1981] HCA 40; 150 CLR 1
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190
Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571
Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602
Nazero Group Pty Ltd v Top Quality Construction Pty Ltd [2015] NSWSC 232
Trustees of the Roman Catholic Church for the Diocese of Lismore v TF Woollam & Son [2012] NSWSC 1559
Veer Build Pty Ltd v TCA Electrical and Communication Pty Ltd [2015] NSWSC 864
Category: Principal judgment
Parties: Kyle Bay Removals Pty Ltd (Plaintiff)
Dynabuild Project Services Pty Ltd (First Defendant)
Philip Martin (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)
Representation:
Counsel:
T.O. Bland with S.J. McMahon (Plaintiff)
M. Christie SC (First Defendant)
Solicitors:
Benjamin & Robinson (Plaintiff)
Gavel & Page Lawyers Pty Ltd (Defendants)

File Number(s): 2016/65906

Judgment

Overview

On 22 January 2016 the defendant builder (Dynabuild) obtained judgment against the plaintiff (Removals) in the District Court for $408,841.56. It did so upon the filing of an adjudication certificate under s 25 of the Building and Construction…

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: [2016] NSWSC 334
Decision Date: 31 March 2016

CaseChat Overview and Summary

In the case of Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd, the parties were engaged in a contractual dispute concerning payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW). The respondent, Kyle Bay Removals, sought adjudication of a payment claim against the applicant, Dynabuild Project Services. The dispute centered on whether the payment claim should be set aside due to alleged contraventions of the statutory requirements.

The primary legal issues revolved around whether the payment claim was validly made and if it adhered to the statutory provisions. Specifically, the court had to determine if the payment claim for the same amount and works as a previous claim, without any works completed after the earlier claim, was permissible under the Act. Additionally, the court examined whether the reference date for the payment claim complied with the contractual terms and statutory requirements, particularly in relation to the two payment claims made concerning the same reference date. Furthermore, the court assessed whether the earlier payment claim, which was not accompanied by a supporting statement, was served for the purpose of section 13(5) and whether the payment claim was made in contravention of section 13(8).

The court found that the statutory requirements were not met. The respondent's payment claim was made for the same amount and works as a previous claim, without any subsequent works. The court held that the statutory provisions were not complied with because the earlier payment claim was not accompanied by a supporting statement as required by section 13(7). The court concluded that the payment claim was invalid and ordered that the payment claim be set aside. As a result, the respondent was not entitled to the payment sought.

The court ordered that the payment claim be set aside and that no further payment be made to the respondent in relation to the claim. The decision underscores the importance of strict adherence to statutory requirements when making payment claims under the Act.

Orders