Nitram Group Pty Ltd v Boston Building Group Pty Ltd - [2021] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
NITRAM GROUP PTY LTD v BOSTON BUILDING GROUP PTY LTD
[2021] SADC 19
Decision of his Honour Judge O'Sullivan
5 March 2021
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS - PAYMENT CLAIMS
Application for summary judgment. The applicant (Nitram) applies for judgment pursuant to section 15(1) and (2)(a)(i) of the Building and Construction Industry Security of Payment Act 2009 (SA) (the Act).
Nitram was engaged by the respondent (Boston) to carry out construction work. Nitram rendered three invoices totalling $119,512.83 (including GST). The respondent paid part of the invoices such that Nitram claims the remaining balance of the first and third invoices in the sum of $72,108.56 (including GST).
Nitram submits that Boston did not provide payment schedules within the required time, or at all in relation to the two invoices on which it alleges money is still owing. Initially, Boston conceded that no payment schedules had been provided. During oral submissions, this concession was withdrawn by counsel, who submitted that there was in fact a payment schedule provided by email from Boston to Nitram. Nitram submitted this email did not meet the requirements of a payment schedule, as defined by section 14 of the Act.

Held:
1. The applicant is entitled to judgment pursuant to s 15(2)(a)(i) of the Act in the sum of $72,108.56 (including GST) comprising the following amounts:
1.1.      $42,951.95 in respect of invoice 8436, dated 19 February 2020; and
1.2.      $29,156.60 in respect of invoice 8561, dated 18 May 2020.
2.The applicant is entitled to interest pursuant to s 11(2)(a) of the Act at the rate prescribed under the Supreme Court Act 1935 (SA) in respect of judgment debts of the Supreme Court of South Australia:
2.1.      From 22 March 2020 in respect of invoice 8436; and
2.2.      From 19 April 2020 in respect of invoice 8561.

Building and Construction Industry Security of Payment Act 2009 (SA) s 11(2)(a), 14, 14(4), 15(1), 15(2)(a)(i); Supreme Court Act 1935 (SA), referred to.
Built Environs Pty Ltd v Tali Engineering [2013] SASC 84; Ausenco Operations Pty Ltd v Anor v Ferretti International Ottoway Pty Ltd & Anor [2020] SASC 46, considered.

NITRAM GROUP PTY LTD v BOSTON BUILDING GROUP PTY LTD
[2021] SADC 19

Introduction

The applicant (“Nitram”) applies for judgment relying on s 15(1) and (2)(a)(i) of the Building and Construction Industry Security of Payment Act 2009 (SA) (The “Act”).
Initially, Nitram sought judgment in the sum of $119,512.83 (including GST) on the basis of three invoices for construction work it carried out at Briar Road, Felixstow and Willingale Avenue, Lockleys being:
1.Invoice 8436 dated 19 February 2020 in the sum of $85,903.91 (“First Briar Road Invoice”);
2.Invoice 8518 dated 22 April 2020 in the sum of $47,404.27; (“Willingale Invoice”); and
3.Invoice 8561 dated 18 May 2020 in the sum of $29,156.60 (“Second Briar Road Invoice”).[1]
[1] First Nguyen Affidavit, Exhibits DN-06, 07, 08.

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] SADC 19
Decision Date: 5 March 2021

CaseChat Overview and Summary

The case before the court involved a dispute between Nitram Group Pty Ltd, the applicant, and Boston Building Group Pty Ltd, the respondent. The applicant sought to recover progress payments under a building contract governed by statutory provisions concerning progress payments in building and engineering contracts. The matter was heard in the Supreme Court of South Australia. The applicant claimed that the respondent had failed to make the progress payments as required under the contract and relevant statutory provisions. Specifically, the applicant sought the recovery of amounts due under two invoices: invoice 8436, dated 19 February 2020, and invoice 8561, dated 18 May 2020.

The legal issues before the court involved interpreting the statutory provisions governing progress payments and determining whether the respondent was liable for the amounts claimed by the applicant. The court needed to assess the validity of the applicant's progress payment claims and the respondent's obligations under the contract and relevant statutory framework. Key issues included whether the applicant had properly submitted the payment claims, whether the respondent had valid reasons to withhold payment, and the calculation of the amounts due.

The court found in favour of the applicant, concluding that the respondent was liable for the amounts claimed. The court determined that the applicant had validly submitted the payment claims and that the respondent had failed to make the payments as required by the statutory provisions. The court awarded the applicant the sum of $72,108.56, including GST, for the two invoices in question. Additionally, the court granted interest on the judgment debt at the rate prescribed under the Supreme Court Act 1935 (SA), starting from specified dates for each invoice.

Orders

Orders of the court

1. The applicant is entitled to judgment pursuant to s 15(2)(a)(i) of the Act in the sum of $72,108.56 (including GST) comprising the following amounts:

1.1. $42,951.95 in respect of invoice 8436, dated 19 February 2020; and

1.2. $29,156.60 in respect of invoice 8561, dated 18 May 2020.

2. The applicant is entitled to interest pursuant to s 11(2)(a) of the Act at the rate prescribed under the Supreme Court Act 1935 (SA) in respect of judgment debts of the Supreme Court of South Australia:

2.1. From 22 March 2020 in respect of invoice 8436; and

2.2. From 19 April 2020 in respect of invoice 8561.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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