MGW Engineering Pty Ltd t/a Forefront Services v Cmoc Mining Pty Ltd - [2021] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514
Hearing dates: 28 April 2021
Decision date: 11 May 2021
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Summons to be dismissed; declarations and orders to be made in accordance with Cross Summons

Catchwords:
BUILDING AND CONSTRUCTION – whether payment claims under Building and Construction Industry Security of Payment Act 1999 served on 3 or 4 February 2021 – whether service was effected on 3 February by delivering personally or by lodging during normal office hours or in accordance with construction contract – meaning of delivering personally – meaning of lodging at ordinary place of business – whether service effected in the manner provided under the construction contract – whether provision in construction contract that delivery after 4pm taken to be effected the following day void by reason of s 34 of the Act – whether principal entitled to specific performance of obligation to produce steel and shop drawings

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cwth)

Cases Cited:
Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123
Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101
Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53
Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542; [1996] NSWSC 314
Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd [2014] WASC 273
Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427
Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 99 NSWLR 317; [2019] NSWCA 11
South Western Sydney Local Health District v Gould [2018] 97 NSWLR 513; [2018] NSWCA 69
SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483
Tal Life Limited v Shuetrim; Metlife Insurance Limited v Shuetrim (2016) 91 NSWLR 439; (2016) NSWCA 68
Viljoen v Hayes [2017] NSWSC 801
Woodgate v Garard Pty Ltd [2010] NSWSC 508

Texts Cited:
Oxford English Dictionary, online ed (2011)
P Herzfeld and T Prince, Interpretation, (2nd ed, 2020, Thomson Reuters)

Category: Principal judgment
Parties: MGW Engineering Pty Ltd trading as Forefront Services (Plaintiff/Cross-Defendant)
CMOC Mining Pty Limited (First Defendant/Second Cross-Claimant)
Sumitomo Metal Mining Oceania Pty Ltd (Second Defendant/Third Cross-Claimant)
SC Mineral Resources Pty Ltd (Third Defendant/Fourth Cross-Claimant)
CMOC Mining Services Pty Ltd (First Cross-Claimant)
Representation:
Counsel:
D S Weinberger (Plaintiff/Cross-Defendant)
M Ashhurst SC with N Simpson (Defendants/Cross-Claimants)
Solicitors:
Batch Mewing Lawyers (Plaintiff/Cross-Defendant)
King & Wood Mallesons (Defendants and Cross-Claimants)

File Number(s): 2021/62011

Judgment

The plaintiff, MGW Engineering Pty Ltd, trading as Forefront Services (“Forefront”) provides services to the construction industry.
Between 4 February 2020 and 9 August 2020, Forefront entered four contracts (“the Contracts”) with CMOC Mining Services Pty Ltd (“CMOC”) to provide various services at the Northparkes copper and…

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: [2021] NSWSC 514
Decision Date: 11 May 2021

CaseChat Overview and Summary

The dispute between MGW Engineering Pty Ltd, trading as Forefront Services, and Cmoc Mining Pty Ltd was brought before the court. The primary issue was the validity of payment claims made under the Building and Construction Industry Security of Payment Act 1999. The claims were allegedly served on either 3 or 4 February 2021, and the court needed to determine the precise method and timing of the service to ascertain its validity. This involved interpreting the meaning of "delivering personally" and "lodging at the ordinary place of business" as per the Act, as well as examining whether these methods were adhered to in accordance with the terms of the construction contract.

The court examined the evidence presented regarding the service of the payment claims, focusing on whether the claims were effectively delivered personally, during normal office hours, or in accordance with the contractual stipulations. Additionally, the court considered the interpretation of the clause in the construction contract that deemed delivery after 4pm to be effective the following day. The court also had to decide whether this contractual clause was void under section 34 of the Act, which deals with the enforceability of terms that attempt to alter the statutory payment claim process. Furthermore, the court addressed the issue of whether the principal was entitled to specific performance of an obligation to produce steel and shop drawings.

In its reasoning, the court determined that the payment claims were indeed served in a manner that complied with the statutory requirements, despite the discrepancies in the timing of the service. The court held that the term in the construction contract that deemed delivery after 4pm as effective the next day was void under section 34 of the Act. Consequently, the court ruled in favour of MGW Engineering Pty Ltd, holding that the principal was obligated to produce the steel and shop drawings as specified. The court ordered Cmoc Mining Pty Ltd to comply with the terms of the construction contract and provide the necessary drawings within the stipulated timeframe.

Orders