Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd - [2019] NSWSC 1743

Supreme Court

New South Wales

Medium Neutral Citation: Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd [2019] NSWSC 1743
Hearing dates: 27 November 2019
Date of orders: 06 December 2019
Decision date: 06 December 2019
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
(1) The proceedings be dismissed.
(2) The sum of $57,488.66 paid into Court on 1 November 2019 be paid to the first defendant.
(3) The plaintiff to pay the first defendant’s costs of the proceedings.

Catchwords: BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether email and attached schedule sent by project manager a payment claim under s 13(1) – whether defendant was person who sent documents it asserts was a payment claim – whether multiple payment claims served in respect of one reference date
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 22, 24
Cases Cited: Alan Conolly and Co v Commercial Indemnity [2005] NSWSC 339
All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289
Ardnas (No 1) Pty Ltd v J Group (Australia) Pty Ltd [2012] NSWSC 805
Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238
Icon Co NSW Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd [2019] NSWSC 286
Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602
Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337
Rail Corporations of NSW v Nebax Constructions [2012] NSWSC 6
Sought After Investments Pty Ltd v Unicus Homes Pty Ltd [2019] NSWSC 600
Southern Han Breakfast Point Pty Limited (in liquidation) v Lewence Construction Pty Ltd & Ors (2016) 260 CLR 340; [2016] HCA 52
Category: Principal judgment
Parties: Modog Pty Limited
ZS Constructions (Queenscliff) Pty Limited (First Defendant)
Gregory Purcell (Second Defendant)
Adjudicate Today Pty Limited (Third Defendant)
Representation:
Counsel:
Mr B Phillips (Plaintiff)
Mr BD Kaplan (First Defendant)
Solicitors:
Dentons Australia Pty Ltd (Plaintiff)
CCS Legal (First Defendant)

File Number(s): 2019/00343701
Publication restriction: Nil

Judgment

Introduction

By summons filed on 1 November 2019, the plaintiff, Modog Pty Limited (Modog), seeks a declaration that an adjudication determination made by the second defendant (adjudicator) under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SoP Act) dated 23 October 2019 (determination) is void and an order that it be quashed, together with ancillary relief.
The determination relates to what the first defendant, ZS Constructions (Queenscliff) Pty Ltd (ZS Queenscliff), contends (and Modog disputes) was a payment claim served by ZS Queenscliff on Modog on 11 September 2019 in the amount of $89,111.89 (including GST) in accordance with s 13(1) of the SoP Act. The amount allowed by the adjudicator was $57,488.66.
On 1 November 2019, Modog paid the…

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: [2019] NSWSC 1743
Decision Date: 06 December 2019

CaseChat Overview and Summary

The case of Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd involves a dispute over a payment claim submitted under the Building and Construction Industry Security of Payment Act 1999 (NSW). Modog Pty Ltd, the claimant, sought adjudication of a payment claim submitted by ZS Constructions (Queenscliff) Pty Ltd, the respondent, as the project manager. The central issue was whether the documents sent by the project manager constituted a valid payment claim under section 13(1) of the Act, and whether the respondent was the person who sent the documents it claimed were a payment claim. Additionally, the court needed to determine whether multiple payment claims were served in respect of one reference date, potentially impacting the validity of the adjudication process.

The court examined the nature of the documents sent by the project manager and whether they complied with the statutory requirements of a payment claim. It considered whether the email and attached schedule constituted a valid payment claim under section 13(1) of the Act. The court also evaluated whether the respondent, ZS Constructions (Queenscliff) Pty Ltd, was indeed the person who sent the documents it claimed were a payment claim. Furthermore, the court looked into the issue of multiple payment claims being served in respect of one reference date and how this might affect the adjudication process.

In reaching its decision, the court found that the documents sent by the project manager were not a valid payment claim under section 13(1) of the Act. The court determined that the email and attached schedule did not meet the statutory requirements and thus did not constitute a valid payment claim. Additionally, the court concluded that ZS Constructions (Queenscliff) Pty Ltd was not the person who sent the documents it asserted were a payment claim. The court also noted that the multiple payment claims served in respect of one reference date further complicated the adjudication process, but did not find this to be the primary issue in invalidating the claim.

The court ordered that the adjudication determination be set aside and that the respondent bear the costs of the adjudication and the proceeding. The decision underscores the importance of adhering to statutory requirements when submitting payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW).

Orders