NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd

NC Refractories Pty Ltd brought proceedings against Consultant Bricklaying Pty Ltd in the Supreme Court of New South Wales. The matter involved a dispute over a payment claim made under a verbal construction contract. The defendant had initially submitted a payment claim under the contract, to which the plaintiff responded by stating it would pay a lesser amount. In response to this, the defendant issued a revised invoice. The plaintiff argued that the revised invoice was not based on the original construction contract but rather on a subsequent, independent arrangement that did not constitute a construction contract. Additionally, the plaintiff contended that if the claim was indeed based on the construction contract, it was the second claim under it for the same reference period, which would render it impermissible under section 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW).

The court was tasked with determining whether the second payment claim was made under the original construction contract and whether it was permissible. The court found that the second claim was made under the original contract, which had been subject to variations. The court further reasoned that the second claim was not impermissible as a duplication because the first claim had, by necessary implication, been withdrawn. Additionally, the court considered the discretionary prerogative relief sought by the plaintiff and decided that it should be withheld on discretionary grounds. Consequently, the court's decision favoured the defendant, affirming that the second payment claim was valid and that the plaintiff was obligated to pay the amount claimed.