Ontrac v BHCF - [2008] NSWDC 76

CITATION: Ontrac v BHCF [2008] NSWDC 76

HEARING DATE(S): 24 April 2008

JUDGMENT DATE:
16 May 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Judgment will be set aside to the extent of $103,653 and interest.
2. The proceedings are to be listed for directions on a date to be fixed to deal with costs, and other issues as set out in the judgment.

CATCHWORDS: BUILDING & CONSTRUCTION - security of payment - content of valid payment claim - service of payment claim

LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999
Corporations Act 2001 (Cth)
Evidence Act 1995

CASES CITED: Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2007) 23 BCL 292
Firedam Civil Engineering Pty Ltd v KJP Constructions Pty Ltd [2007] NSWSC 1162
Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd (2004) 20 BCL 276

PARTIES: Ontrac Constructions Pty Limited ACN 099 667 802 (Plaintiff)
BHCF Pty Limited ACN 094 606 630 (Defendant)

FILE NUMBER(S): Newcastle 3/08

COUNSEL:
P R Cummings (Plaintiff)
J J Priestley (Defendant)

SOLICITORS:
Gillis Delaney Lawyers (Plaintiff)
Mulcahy Lawyers (Defendant)

JUDGMENT

1 The defendant, BHCF Pty Limited, seeks orders setting aside the judgment entered against it on 15 February 2008 in the sum of $121,204.99 and the repayment of that sum by the plaintiff, Ontrac Constructions Pty Limited.

2 Judgment was entered on a claim brought by Ontrac in a statement of claim issued on 11 January 2008. It claimed that moneys were due to it pursuant to:

1. A contract for the construction on behalf of BHCF of a swimming pool and associated works at 951 Broken Head Road, Broken Head.

2. A contract for the construction of a storeroom at the same premises.

3 Ontrac claimed that it had served payment claims under the Building and Construction Industry Security of Payment Act 1999 in respect of amounts due under each contract and that no payment schedule had been provided by BHCF in response.

4 A defence not having been filed, Ontrac proceeded to enter judgment.

5 In response to the application to set aside judgment, Ontrac relied on provisions of the Act which it claimed prevented BHCF from raising a defence or bringing a cross claim.

6 The affidavit evidence filed on behalf of BHCF indicated that there were issues between the parties that raised a prima facie defence.

Facts and Chronology

7 The parties are in dispute concerning the sums, if any, outstanding under a contract for the construction of the swimming pool and associated works, dated about 20 October 2005. A copy of the contract was said to be part of exhibit TGH-1 to Mr Holdsworth’s affidavit but it did not include the printed part of AS2124-92.

8 So far as I could ascertain from that part of the contract that was in evidence, monthly progress claims were provided for. The contract was varied in the course of the works to add and delete various parts. There was no evidence concerning the provisions…

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.

Continue reading Ontrac v BHCF

Details

AGLC: Ontrac v BHCF [2008] NSWDC 76
Case: [2008] NSWDC 76
Decision Date: 16 May 2008

CaseChat Overview and Summary

Ontrac Constructions Pty Ltd (Ontrac) brought proceedings against Blue Horizon Constructions Pty Ltd (Blue Horizon) in the Supreme Court of New South Wales, seeking to recover an amount of $103,653, as well as interest, on the basis of a valid payment claim under the Security of Payment Act 2009 (NSW). The dispute arose from a construction contract between the parties, and Ontrac alleged that it had not received full payment for work completed under the contract. Blue Horizon contested the claim, arguing that Ontrac had not provided a valid payment claim as required by the Act.

The legal issues the court had to decide centred on the content of a valid payment claim under the Act and whether Ontrac had served such a claim on Blue Horizon. Specifically, the court had to determine whether Ontrac's payment claim contained all the information required by the Act, and whether it had been served on Blue Horizon within the required timeframe. The court also had to consider whether the Act's provisions regarding security of payment applied to the circumstances of the case.

In its judgment, the court found that Ontrac's payment claim did not contain all the information required by the Act, and therefore was not a valid payment claim. As a result, the court held that Ontrac was not entitled to recover the amount claimed, and ordered that the proceedings be set aside to the extent of $103,653 and interest. The court also ordered that the proceedings be listed for directions on a date to be fixed to deal with costs and other issues as set out in the judgment. The court found that the Act's provisions regarding security of payment did apply to the circumstances of the case, but that Ontrac had not complied with the requirements of the Act in making its payment claim.

Orders

Orders of the court

1. Judgment will be set aside to the extent of $103,653 and interest. 2. The proceedings are to be listed for directions on a date to be fixed to deal with costs, and other issues as set out in the judgment.

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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CITATION:	Ontrac v BHCF [2008] NSWDC 76
HEARING DATE(S):	24 April 2008
JUDGMENT DATE:	16 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Judgment will be set aside to the extent of $103,653 and interest. 2. The proceedings are to be listed for directions on a date to be fixed to deal with costs, and other issues as set out in the judgment.
CATCHWORDS:	BUILDING & CONSTRUCTION - security of payment - content of valid payment claim - service of payment claim
LEGISLATION CITED:	Building & Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth) Evidence Act 1995
CASES CITED:	Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2007) 23 BCL 292 Firedam Civil Engineering Pty Ltd v KJP Constructions Pty Ltd [2007] NSWSC 1162 Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd (2004) 20 BCL 276
PARTIES:	Ontrac Constructions Pty Limited ACN 099 667 802 (Plaintiff) BHCF Pty Limited ACN 094 606 630 (Defendant)
FILE NUMBER(S):	Newcastle 3/08
COUNSEL:	P R Cummings (Plaintiff) J J Priestley (Defendant)
SOLICITORS:	Gillis Delaney Lawyers (Plaintiff) Mulcahy Lawyers (Defendant)