MN Builders Pty Ltd v MMM Cement Rendering Pty Ltd

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	MN Builders Pty Ltd v MMM Cement Rendering Pty Ltd [2019] NSWDC 734
Hearing dates:	3, 4 December 2019
Date of orders:	04 December 2019
Decision date:	04 December 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 52.
Catchwords:	BUILDING AND CONSTRUCTION – application for summary judgment – claim by subcontractor against builder for unpaid tax invoice – whether valid construction contract was entered into – whether payment claim was served – whether claimant’s pleading precludes submission that payment claim was served.
Legislation Cited:	Civil Procedure Act Construction Industry (Security of Payment) Act 1999 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Bastistatos v RTA (2006) 266 CLR 256 Brinson v Rocla Concrete Pipes Limited (1982) 2 NSWLR 937 Civil Procedure Act 2005 (NSW) Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Emag Constructions Pty Ltd v Highrise Concrete Contractors (Aust) Pty Ltd [2003] NSWSC 903 Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Grave v Blazevic Holdings Pty Ltd t/as Kross Building Services (2010) 79 NSWLR 132 Hill ATF Ashmore Superannuation Benefit Fund v Halo Architectural Design Services [2013] NSWSC 865 Isis Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714 Kingston Building v McKay [2009] NSWDC 204 Owners SP56587 v Consolidated Quality Projects [2009] NSWSC 1476 Spencer v Commonwealth [2010] HCA 28 The Owners Strata Plan 56587 v Consolidated Quality Projects [2009] NSWSC 1476
Texts Cited:	Ritchie’s Uniform Civil Procedure (NSW)
Category:	Principal judgment
Parties:	MN Builders Pty Ltd (Plaintiff/ cross-defendant) MMM Cement Rendering Pty Ltd (Defendant/ cross-claimant) Salem Sabbough (Second defendant)
Representation:	Counsel: Mr S Ipp (Plaintiff) Mr T Jones (Defendant)   Solicitors: Bradbury Legal Paramonte Legal
File Number(s):	2019/218860

Judgment

INTRODUCTION

1. Before the Court is a notice of motion filed on 22 August 2019, brought by the defendants who are also cross-claimants, seeking summary judgment on a cross-claim. [1]

   1. A cross-claimant is a “plaintiff”, for the purposes of s 3 of the Civil Procedure Act 2005 (NSW) and is thereby entitled to seek summary judgment on its claim.

2. This proceeding involves a dispute between the plaintiff (a builder) and the first defendant (a subcontractor) in relation to payment for the supply by the subcontractor of rendering services in connection with building works at Liverpool in Sydney. Those services were supplied pursuant to a contract entered into on 7 June 2018. The rendering works were performed from the middle of 2018 through to late January 2019.

3. The subcontractor issued 7 tax invoices. All but one of them – the 7th tax invoice – were paid by the Builder.

The builder’s claim

4. The builder contends that, in the circumstances, it overpaid the subcontractor by the sum of approximately $280,000. The builder’s claim is founded upon the existence of a contract entered into on or about 7 June 2018. This contention is premised upon the builder’s view of the…