LHRE Group Pty Ltd v Complete Hire & Sales Pty Ltd - [2024] WADC 61

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   LHRE GROUP PTY LTD -v- COMPLETE HIRE & SALES PTY LTD [2024] WADC 61
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   30 MAY 2024
DELIVERED          :   1 AUGUST 2024
FILE NO/S:   CIV 169 of 2024
BETWEEN:   LHRE GROUP PTY LTD
Plaintiff
AND
COMPLETE HIRE & SALES PTY LTD
Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Claim under Building and Construction Industry (Security of Payment) Act 2021 (WA) - Where defendant disputes contracting parties and asserts assignment of rights - Affidavit evidence - Whether there is a question to be tried - Turns on own facts

Legislation:

Building and Construction Industry (Security of Payment) Act 2021 (WA), pt 2, pt 3
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 14

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr L N Firios
Defendant	:	Mr A D Roberts

Solicitors:

Plaintiff	:	Squire Patton Boggs
Defendant	:	Hotchkin Hanly

Case(s) referred to in decision(s):

Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299
Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184
BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82; (2022) 108 NSWLR 350
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Deputy Commissioner of Taxation v Howley [2021] WASC 82
George Hudson Holdings Ltd v Rudder (1973) 128 CLR 387
Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132
Manton Enterprises Pty Ltd as trustee for GPK No 2 Trust v LT Market St Pty Ltd [2021] WASC 4
Perpetual Trustee Company Ltd v Nikoloff [2020] WASC 389
Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337
R v Clarke (1927) 40 CLR 227
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317
Smith v McCusker QC [2005] WASCA 226
Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
West Tankers Pty Ltd v Scottish Pacific Business Finance Ltd [2017] NSWSC 621
Westpac Banking Corporation v Anderson [2017] WASC 106
Zaghloul v Bayly [2021] WASCA 125

PRINCIPAL REGISTRAR MCGIVERN:

Introduction

On 1 August 2022, a new statutory regime for the payment of contractors working in the construction industry was introduced by the Building and Construction Industry (Security of Payment) Act 2021 (WA) (SPA).[1] More specifically, upon certain criteria being met, the SPA introduces an expedited process to recover payments owed under a construction contract as a simple debt.
[1] Replacing the former Construction Contracts Act 2004 (WA).
Relying on that Act, the plaintiff (LHRE) brings the present application for summary judgment against the defendant (Complete).
In broad terms, LHRE, a labour-hire company, claims that it was engaged by Complete, a building company, to supply labour for remedial work being undertaken on the Spinifex Hotel in Derby (Hotel) and is entitled to recover monies invoiced in relation to those works as a statutory debt under the SPA.
For the reasons that follow, the application is dismissed.

Legal framework and issues

In dealing with the application, the following issues must be addressed:
(a)has LHRE established a prima facie case against Complete;
(b)if so, has Complete raised a question to be tried such as to show cause against the application; and
(c)ought the court exercise its discretion in favour of granting the application?
Those issues derive from, and are to be determined in accordance with, the relevant legal framework as set out below.

Summary judgment

LHRE's application is made pursuant to O 14 of the Rules of the Supreme Court 1975 (WA) (RSC), which is to the effect that:
(a)the plaintiff must, by affidavit evidence, make out a prima facie case that it has a good cause of action against the defendant, as to the whole or part of which there is no defence;[2]
(b)upon the plaintiff doing so, there is an evidentiary onus on the defendant to show cause against the application, by satisfying the court that there is an issue or question in dispute which ought to be tried;[3]
(c)the plaintiff bears the ultimate burden of proof in relation to the application;[4] and
(d)the court exercises a discretion in determining whether to give summary judgment in relation to all or part of the claim,[5] or whether to give leave to the defendant, unconditionally or on such terms as it thinks fit, to defend the claim.[6]
[2] RSC O 14 r 1, O 14 r 2. See also: Westpac Banking Corporation v Anderson [2017] WASC 106 [102] ‑ [103] (Westpac).
[3] RSC O 14 r 3(1), O14 r 4(1). See also: Perpetual Trustee Company Ltd v Nikoloff [2020] WASC 389 [13] (Nikoloff); Deputy Commissioner of Taxation v Howley [2021] WASC 82 [13].
[4] Westpac [103], citing Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 23; Manton Enterprises Pty Ltd as trustee for GPK No 2 Trust v LT Market St Pty Ltd [2021] WASC 4 [38].
[5] RSC O 14 r 3(1). See also: Smith v McCusker QC [2005] WASCA 226 [88].
[6] RSC O 14 r 4(3).
The relevant provisions are to be approached and applied in accordance with well-established principles, summarised in Zaghloul v Bayly,[7] as follows:
116The principles to be applied on an application for summary judgment are well established. The critical issue is whether it is clear that there is no real question to be tried. The issue is framed in this manner as it is only in the clearest of cases, where there is a high degree of certainty about the outcome if the proceedings were allowed to go trial, that summary judgment ought properly to be granted. The exercise of powers to summarily terminate proceedings must always be attended with caution.
117There are cases where the court has considered it appropriate to determine questions of law on a summary judgment application. There should be summary judgment if the facts are undisputed and the law is clear. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument. It will usually be appropriate to leave the determination of such questions for trial.
(footnotes omitted)
[7] Zaghloul v Bayly [2021] WASCA 125 [116] - [117]. See also: Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
LHRE contends that, despite this high threshold, this is a case where summary judgment is warranted because, by reason of the SPA, Complete can raise no defence to the claim.

The SPA

The SPA applies to 'construction contracts' entered into after 1 August 2022.[8]
[8] SPA s 9(1). In the remainder of this decision, unless otherwise identified, any reference to a statutory provision is a reference to the SPA.
A construction contract:
(a)is defined as 'a contract, agreement or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party';[9] and
(b)may be written or oral, or partly written and partly oral.[10]
[9] SPA s 5.
[10] SPA s 9(2)(a).
Part 2 of the SPA, headed: 'Construction contracts and [the] right to progress payments', relevantly contains the provisions outlined below.
As will appear from the discussion that follows, s 17(1) ‑ s 17(4) are of some significance and it is convenient, therefore, to set them out in full:
17.Right to progress payments
(1)A person who, under a construction contract, has undertaken to carry out construction work, or to supply related goods and services, is entitled to receive payment under this section (a progress payment).
(2)A progress payment to which a person is entitled under this section includes the following -
(a)the final payment for construction work carried out, or for related goods and services supplied, under a construction contract;
(b)a single or one-off payment for construction work carried out, or for related goods and services supplied, under a construction contract;
(c)a milestone payment under a construction contract, being a payment that is based on an event or date.
(3)A progress payment to which a person is entitled under this section does not include payment for any expenses, loss or damages incurred because of a breach of a construction contract.
(4)The entitlement to receive a progress payment under this section is, subject to section 55(3), a separate and additional entitlement to any entitlement to payment under a construction contract, and accordingly a reference in this Act to a progress payment is a reference to a progress payment to which a person is entitled under this section.
The amount of a progress payment entitlement is determined in accordance with the construction contract[11] or, if the contract is silent on the matter, then on the basis of the 'value of the construction work'.[12]
[11] SPA s 18(a).
[12] SPA s 18(b), read with s 19.
In the case of a subcontractor, a progress payment is payable on the date for payment under the construction contract, or 25 business days after a 'payment claim' is made under pt 3, whichever is earlier.[13]
[13] SPA s 20(1)(b) - s 20(2).
Part 3 of the SPA, headed: 'Procedure for obtaining progress payments', relevantly contains the provisions outlined below.
Section 22 provides:
22.Making payment claims
(1)A person who is or claims to be entitled to a progress payment may give a claim for the progress payment (a payment claim) to the person who, under the relevant construction contract, is or may be liable to make the progress payment.
(2)A payment claim is made for the purposes of this Act when the claim is given under subsection (1).
A payment claim must be made in writing, and must identify both the amount of the progress payment claimed and the construction work or related goods and services to which the progress payment relates.[14]
[14] SPA s 24.
Section 25 provides, in effect, that if issue is taken with a payment claim, a response must be made within a specified period[15] and in a specified way, by means of issuing a 'payment schedule' to the claimant.
[15] Specifically, 15 days after the payment claim is made, or such time as is provided under the construction contract.
If a respondent does not issue a payment schedule in accordance with s 25, then:
(a)the claimed amount becomes payable on the due date;[16] and
(b)if payment is not then made on the due date, the claimant may elect to recover the claimed amount as a debt due (SPA debt claim).[17]
[16] SPA s 26 (read with SPA s 20 as to the due date).
[17] SPA s 27(2)(a). In the alternative, but not relevant for present purposes, the claimant may make an adjudication application in relation to the payment claim: SPA s 27(2)(b).
If the claimant makes an SPA debt claim, then:
(a)the respondent is not, in those proceedings, entitled to bring any cross-claim against the claimant or 'to raise any defence in relation to matters arising under the construction contract';[18] and
[18] SPA s 27(3)(b).
(b)the court may, however, only give judgment in favour of the claimant if it is satisfied that the following 'relevant circumstances' exist:[19]
(a)the respondent -
(i)did not respond to the payment claim by giving a payment schedule to the claimant within the time allowed for the response; or
(ii)did respond to the payment claim by giving a payment schedule to the claimant within the time allowed for the response, and the payment schedule indicates the scheduled amount that the respondent proposes to pay to the claimant;
(b)the respondent has not paid the claimed or scheduled amount owed to the claimant in full on or before the due date for the progress payment;
(c)if the payment of the claimed or scheduled amount owed is dependent on the substitution of performance security under Division 6 - the requisite compliant performance bond has been duly executed by an authorised issuing institution as referred to in that Division.
[19] SPA s 27(3)(a), s 27(4).
LHRE relies on this 'summary curial procedure',[20] described as a 'speak up or pay up'[21] regime, as the foundation of the present application.
[20] Plaintiff's written submissions, par 24; citing Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317 [180], [185].
[21] Plaintiff's written submissions, par 21 (citing Robert McDougall KC, 'The Building & Construction Industry Security of Payment Act 1999' (September 2004) [dealing with the equivalent Act in NSW], noted in Annotated Building & Construction Industry Security of Payment Act [SOP15.80]).

The application

Relevant procedural history

LHRE commenced the action against Complete by a writ, indorsed with a statement of claim, filed on 15 January 2024.
Complete filed a memorandum of appearance on 25 January 2024, but has not filed a defence.
LHRE brought the present application by chamber summons filed 14 February 2024.
In support of the application, LHRE has filed:
(a)two affidavits of Mr Keven Patrick O'Shea, a director of the plaintiff, respectively made on 14 February 2024 and 16 April 2024 (O'Shea affidavits); and
(b)written submissions filed 17 April 2024.

In opposition to the application, Complete has filed:
(a)the affidavit of Mr Emanuel Richard Brian Dillon, the sole director of the defendant, made 27 March 2024 (Dillon affidavit); and
(b)written submissions filed 3 May 2024.
The application was heard at a special appointment on 30 May 2024, at which counsel for both parties appeared and made oral submissions.

Contentions

In summary, LHRE contends that:
(a)LHRE is a labour hire company;
(b)Complete is a building company which was engaged in carrying out construction works on the Hotel;
(c)on or about 1 June 2023, LHRE was engaged by Complete as a subcontractor to carry out construction works (involving the supply of goods and services) (Works) on the Hotel. The contract between the parties was partly oral, partly in writing and partly by conduct (Asserted Contract);
(d)pursuant to the Asserted Contract, LHRE
(i)performed Works during June 2023;[22] and
[22] Specifically, 1 - 18 June 2023.
(ii)issued invoices to Complete for those Works for sums amounting to AUD$74,486.04 plus GST (being a total of AUD$81,934.64) (Invoiced Amount);
(e)the Asserted Contract was a construction contract within the meaning of the SPA, pursuant to which:
(i)LHRE's performance entitled it to progress payments;
(ii)the invoices, rendered in accordance with the Asserted Contract, constitute a payment claim;
(iii)since Complete did not issue a payment schedule in response to the payment claim, the Invoiced Amount became payable 25 days after the payment claim was made (being by 3 November 2023); and
(iv)Complete did not pay the Invoiced Amount by the due date (or at all) and, accordingly, LHRE is entitled to recover that amount as a statutory debt under s 27(2)(a);
(f)by reason of the above:
(i)the 'relevant circumstances' required by s 27(4) are established and the plaintiff is entitled to judgment in the sum of the Invoiced Amount plus interest;
(ii)Complete may not now raise a defence in relation to matters arising under the Asserted Contract; and
(iii)for the purposes of RSC O 14, there is no real question to be tried and summary judgment ought to be given.
Complete contends, in summary, that:
(a)the existence of a construction contract between the party giving and the party receiving the payment claim underpins the statutory regime under the SPA - it is the 'basic and essential requirement' of the scheme;[23]
(b)the SPA does not prevent a party which receives an asserted payment claim from raising any defence whatsoever; it only prevents one arising under the construction contract (if any);
(c)the identity of the parties is a material fact to LHRE's pleaded claim;
(d)Complete has adduced affidavit evidence to the effect that, before 1 June 2023, it engaged an entity other than LHRE - specifically, OSB Group Pty Ltd (OSB) - to perform the Works;
(e)the SPA does not determine whether summary judgment ought to be given; that question is to be determined in accordance with the ordinary principles applicable to RSC O 14 r 1;
(f)there is a real question to be tried regarding the parties to the contract (and therefore as to the existence of a construction contract between the parties to this action) (identity issue); and
(g)further, even if the Asserted Contract was found to exist between LHRE and Complete, then there is a question to be tried as to whether LHRE assigned its entitlement to payment to another entity (assignment issue).
[23] Defendant's written submissions, pars 5 and 17 (citing BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82; (2022) 108 NSWLR 350 [32]; Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132 [23], [36]).

Consideration

Because LHRE relies on the SPA - specifically, the provisions relevant to making and defending an SPA debt claim - it is essential to the application that it can establish that:
(a)those provisions are engaged; and
(b)there is no (arguable) defence to the SPA debt claim, or part thereof.

Identity issue

In oral submissions, LHRE:
(a)accepted that:
(i)it could only rely on the provisions of the SPA if the Asserted Contract was a construction contract to which it was a party; and
(ii)if there was a triable issue in that regard, then summary judgment could not be given; but
(b)argued that, on analysis, there could be no ambiguity about the parties to the contract (and, therefore, as to the proper claimant).[24]
[24] ts 30 May 2024, pages 11 - 12.
The documentary evidence available to the court:
(a)is annexed to the O'Shea affidavits, filed in support of the application, and to the Dillion affidavit, filed in opposition to the application; and
(b)largely comprises email communications between various individuals.[25]
[25] Exceptions comprise: a letter of demand dated 10 November 2023 and an undated form letter (respectively, KPO11 and KPO13 of the O'Shea affidavits) and an ASIC extract relating to Spinifex Holdings Pty Ltd (ERD-1 of the Dillion affidavit).
Of particular relevance to the identity issue, Mr Kevin O'Shea (Kevin)[26] attests to the effect that:
[26] Because there are two relevant persons who meet the description of 'Mr O'Shea', I have used first names to identify and distinguish between Mr Kevin O'Shea and Mr Michael O'Shea.
(a)he and his brother, Mr Michael O'Shea (Michael), are the directors of and run the business of each of:
(i)LHRE, which company 'is in the business of labour hire for discrete works on construction projects'; and
(ii)OSB, which company performs contract works on projects;
(b)on 17 May 2023, Mr Emanuel Dillon, Complete's managing director,[27] called Michael to see if labour could be provided in respect of the Works;
[27] Described in the O'Shea affidavits as 'the Defendant's General Manager', but described in the relevant signature box of the annexed email chains as 'Managing Director'.
(c)at around the same time, Mr Dillon and Michael had also been discussing works to be completed by OSB on a different project;
(d)on 18 May 2023, Mr Dillon sent an email to Kevin confirming the start date of the Hotel project and the labour and tools required;
(e)on 26 May 2023, Kevin:
(i)received a telephone call from Mr Ian Massey, Complete's onsite project manager, with instructions to mobilise two carpenters, two labourers and a plumber to the site;
(ii)sent an email to Mr Dillon to identify available labour and to confirm 'the Plaintiff's' labour rates and mobilisation costs; and
(iii)Mr Massey confirmed those arrangements by forwarding the email chain to Complete's operations manager, Ms Gemma Lees;
(f)on 29 May 2023, Kevin sent an email to Mr Massey enclosing 'the Plaintiff's' credit application form and standard labour hire terms and conditions' (credit application);
(g)on 1 June 2023, labour supplied by LHRE arrived at site;
(h)Complete has signed various dayworks sheets 'acknowledging the labour hire provided by the Plaintiff to the Defendant on site'; and
(i)'the Plaintiff' has issued an invoice for the Works, which invoice has not been paid.

The responsive affidavit of Mr Dillon is to the effect that:
(a)he is the sole director of:
(i)Complete, which company provides building services, including to some of its related entities; and
(ii)Spinifex Holdings (WA) Pty Ltd, which company operates the Hotel;
(b)in May 2023, Mr Dillon and Mr Massey had discussions to the effect that OSB was interested in tendering on a different project in which Complete was engaged, and that they might use OSB to carry out works on the Hotel beforehand to 'see how they performed';
(c)by email on 10 May 2023, Mr Massey proposed a meeting with 'Michael and Kevin [from] OSB';
(d)on 12 May 2023, Mr Massey and Mr Dillon met with Michael and Kevin to discuss the proposed repair works at the Hotel and, a few days later, Mr Dillon telephoned Michael to take that discussion further;
(e)on 18 May 2023, Mr Dillon received an email from Kevin;
(f)between 26 May 2023 and 30 May 2023, various emails were exchanged between Kevin and Mr Dillon, Mr Massey and Ms Lees in relation to organising the Works;
(g)in the course of the above communications:
(i)Kevin and Michael referred to themselves as being 'from OSB';
(ii)sent emails from email addresses with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email; and
(iii)other than attaching the credit application to an email sent on 29 May 2023, did not refer to LHRE in connection with the Works;
(h)after the commencement of the Works on 1 June 2023, Mr Dillon met and spoke with 'OSB's site supervisor', Mr Jamie McPherson, who did not refer to LHRE in connection with the Works;
(i)through June 2023, email communications from Michael and Kevin in connection with the Works came from email addresses with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email;
(j)on 4 July 2023, Mr Dillon received an email from Mr Jamal Uddin, described therein as 'Accountant':
(i)from an email address with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email; and
(ii)attaching a tax invoice referencing various attached dayworks record sheets, the latter bearing both the OSB and LHRE logos, with a checkbox beside each. In each case, the OSB checkbox was ticked;
(k)Mr Dillon did not sign the credit application and did not, at that time, know who LHRE was; and
(l)the contract for the Works was between Complete and OSB.
The central question is whether the affidavit evidence so clearly establishes that there was a contract between Complete and LHRE that the court can be satisfied that there is no real question to be tried in that regard. That question must, in my view, be answered in the negative.
The evidence is to be approached in the following way:[28]
An application for summary judgment is to be determined on the basis that the version of facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.
(footnotes omitted)
[28] Nikoloff [14]. See also: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28].
To a large degree, the affidavit evidence of the parties is not in direct conflict.
Both deponents agree that various conversations and email communications took place in May 2023 regarding the deployment of labour in connection with the Works.
The O'Shea affidavits refer to 'the Plaintiff' in connection with some of those communications, but that evidence is not specific as to the words used by the individuals themselves (specifically, whether LHRE or OSB was discussed), other than by reference to the annexed documents. In some of those instances, the documents themselves do not specify, or do admit of some ambiguity as to, LHRE being the relevant party.[29]
[29] For example, the email referred to at [34(e)(ii)] refers to labour rates and costs, but does not refer to LHRE and is sent from an OSB email address, with an OSB logo after Kevin O'Shea's name. The documents referred to at [34(h)] - [34(i)] also admit of some ambiguity, as described in [49(d)] below.
The Dillon affidavit focuses largely on what was not said in the relevant communications.
Both deponents rely heavily on the documents annexed to the various affidavits. There does not appear, for these purposes at least, to be any serious factual dispute in relation to the veracity or provenance of those annexed documents, or even what is said in the affidavits about the documents (as opposed to what conclusions can be drawn from them).
The central departure is that each of Mr Dillon and Mr Kevin O'Shea have different views about the capacity in which Kevin and Michael were meeting and corresponding with Mr Dillon (and other Complete personnel) in relation to the Works. Those divergent and subjective views do not give rise to the sort of conflict of fact that the court is called upon to determine (at least for these purposes).
Complete argues that the identity of the contracting parties is ambiguous on the documents and, accordingly, the court is tasked with determining that question objectively, construing the documents in the factual matrix in which they were created.[30] I accept that submission.
[30] Defendant's written submissions, par 20, citing Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 [28].
The pleaded case is that the Asserted Contract is partly oral, partly in writing and partly by performance. Accordingly:
(a)this is not a case where recourse may be had to the 'four corners' of an executed, written contract; and
(b)there are in my view triable questions of fact in relation to the matters that are said to give rise to the Asserted Contract and its terms.
LHRE places particular weight on the credit application, which contains the following clause (acceptance clause):
Your acceptance of subsequent employment of referred candidates from LHRE will constitute your agreement to the standard terms and conditions.
It argues that:
(a)the acceptance clause operated to prescribe a method of acceptance, as LHRE was entitled to do;[31]
(b)when labour was proffered on site, it was accepted by Complete and so the clause is engaged; and
(c)there can be no contest about this because Mr Kevin O'Shea attests that the labour was supplied by LHRE and because Complete signed off on the dayworks sheets.[32]
[31] Plaintiff's written submissions, par 48, citing R v Clarke (1927) 40 CLR 227, 233; George Hudson Holdings Ltd v Rudder (1973) 128 CLR 387, 392, 395, 398, 402; Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617, 623.
[32] ts 30 May 2024, pages 15 - 16, 20 - 23.
I reiterate that that position is not to be assessed, for these purposes, on the basis of whether or not it is likely to succeed at trial. Rather, the question is whether it is so obviously correct, and the conclusion so unavoidable, that there is no room for argument about it.
Relevant to that assessment, I note that:
(a)whether or not the Works were in fact performed (and labour supplied) by LHRE, Mr Dillon's affidavit evidence is to the effect that Complete engaged with OSB to perform the Works;
(b)Mr Dillon's affidavit evidence proffers an explanation, not inherently inconsistent with contemporaneous documents, for why he did not sign the credit application, being that he sought to engage OSB;
(c)as to the contemporaneous documents, it is evident that all of the key email correspondence from Kevin and Michael to Complete was sent from an OSB email address, and bore the logo of OSB (rather than that of LHRE); and
(d)despite the invoice of 4 July 2023 itself bearing the LHRE logo, the dayworks sheets to which it refers give rise to ambiguity on this point because they bear the logo of both OSB and of LHRE, and the checkbox next to the former is ticked.
In my view, there is sufficient ambiguity in the documents for there to remain triable questions as to:
(a)whether the acceptance clause is engaged even if Complete reasonably understood the labour to be supplied by OSB; and
(b)the identity of the contracting parties.
I have concluded that the identity issue is arguable and is appropriate to be resolved at trial. I find that:
(a)LHRE has not made out a prima facie case that there was a construction contract between it and Complete such as to satisfy the requirements of O 14 r 1; and
(b)Complete has shown cause against the application on this issue.

Assignment issue

The conclusion at [51] is sufficient to dispose of the application. However, for completeness, and in the event that I am wrong on that point, I turn briefly to consider the assignment issue.
Complete points to:
(a)documents annexed to the affidavits tendered in the application which show that LHRE sent claims for payment to Complete,[33] which bear the following:
All amounts payable under contracts to which this invoice relates, have been transferred to scottish pacific(BFS) pty ltd('ScotPac').
This means your cheques must be made payable to Scot Pac and be sent direct to it at GPO Box 9969 Perth WA 6001 or by our preferred method of payment …
…
Payment to any other person will not constitute a valid discharge of the debt.
and
(b)the affidavit evidence of Mr Dillon to the effect that Complete was directed by LHRE to make payments to 'ScotPac'.[34]
[33] Defendant's written submissions, par 33. See KPO5 and KPO6 of the O'Shea affidavits, and ERD-7 of the Dillon affidavit.
[34] Defendant's written submissions, par 34, referring to the Dillon affidavit, pars 36 ‑ 37 and ERD-8, ERD-9.
This, it argues, constitutes an assignment of any entitlement to payment under the Asserted Contract, which disentitles LHRE from making an SPA debt claim in relation to amounts said to be owed under that contract.
I note that the issue of assignment has been considered in cases under the equivalent statutory scheme in New South Wales.[35] That case law offers, in my view, a sufficient basis for the conclusion that there is a triable issue in relation to assignment.
[35] Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337; West Tankers Pty Ltd v Scottish Pacific Business Finance Ltd [2017] NSWSC 621.
I have concluded that the assignment issue is arguable and is appropriate to be resolved at trial. I find that:
(a)LHRE has not made out a prima facie case that it is entitled to bring an SPA debt claim against Complete such as to satisfy the requirements of O 14 r 1; and
(b)Complete has shown cause against the application on this issue.

Costs

Costs ordinarily follow the event and, subject to hearing from the parties, I am inclined to follow that usual course in relation to the application.

Conclusion

I will hear submissions as to the precise terms of the orders that should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ER
Associate to Principal Registrar
6 AUGUST 2024