Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 4)

[2021] NSWSC 558

Supreme Court

New South Wales

Medium Neutral Citation:

Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 4) [2021] NSWSC 558

Hearing dates:

18 May 2021

Date of orders:

18 May 2021

Decision date:

18 May 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Declaration that the Plaintiff is entitled to $1,068,304.75 (ex GST) and notation that the Plaintiff accepts it has received payment from the Defendant of that amount

Catchwords:

JUDGEMENTS AND ORDERS – declarations – where finding made that plaintiff entitled to be paid for variations – where no amount owing to plaintiff because of payment made by defendant following a determination pursuant to the Building and Construction Industry Security of Payment Act 1999 – whether utility in declaring amount allowed for variations

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Mees v Roads Corporation [2003] FCA 410

Payce Communities Pty Ltd v Canterbury-Bankstown Council [2021] NSWSC 331

Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 2) [2021] NSWSC 404

Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 3) [2021] NSWSC 464

Warramunda Village Inc v Pryde (2001) 105 FCA 437; [2001] FCA 61

Category:

Consequential orders

Parties:

Payce Communities Pty Limited (Plaintiff)
Canterbury-Bankstown Council (Defendant)

Representation:

Counsel:
Mr M Sheldon (Plaintiff)
Mr B De Buse (Defendant)

Solicitors:
Vincent Young Lawyers (Plaintiff)
Marsden Law Group (Defendant)

File Number(s):

2019/133490

Judgment (EX TEMPORE - REVISED)

1. I delivered my principal judgment in these proceedings on 6 April 2021. [1] I will use the same abbreviations in these reasons.

   1. Payce Communities Pty Ltd v Canterbury-Bankstown Council [2021] NSWSC 331.

2. In my principal judgment, I concluded that Payce was entitled to compensation for the Council's failure to pay it for variations under the Fit-Out Agreement. I invited the parties to confer and agree on the quantum of those variations consistently with those reasons.

3. I also recorded in the principal judgment that, prior to the hearing, Payce had obtained a determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) and that the Council had paid that amount. Nonetheless, debate before me during the hearing focused on the amount to which Payce was entitled for variations. It was understood that, ultimately, the amount that the Council had already paid would have to be taken into account to determine the amount ultimately payable and by whom.

4. The parties were not able to agree on the amount to which Payce was entitled for variations and thus could not agree on the amount payable, either way, by reason of the payment that the Council made under the Act.

5. Since 6 April 2021, I have published two judgments dealing with disputes that have arisen in relation to the calculation of the variation amount. [2]

   2. Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 2) [2021] NSWSC 404 and Payce Communities Pty Ltd v Canterbury-Bankstown Council (No 3) [2021] NSWSC 464.

6. The result is that I have found that the amount to which Payce was entitled for variations was $1,068,304.75. That is less than the amount that the Council paid Payce pursuant to the determination under the Act. It is agreed that the result is that there should be an order now under s 32(3)(b) of the Act, that Payce pay the Council an amount in the order of $250,000.

7. In those circumstances, a further debate has arisen as to the final orders that should be made.

8. Initially, Payce sought judgment in its favour for the figure of $1,068,304.75. I accepted the Council's submissions that that would not have been appropriate because, in the events that have happened, there is no question of Payce being entitled to recover that amount. On the contrary, it is common ground that, as things have turned out, Payce must pay to the Council the amount to which I have referred.

9. In those circumstances, I proposed to the parties that, rather than enter judgment as Payce had sought, I should make a declaration that Payce was entitled to payment for the variations and should note that Payce accepted this amount had been paid.

10. Mr De Buse, for the Council, very helpfully drew my attention to the authorities which accept that courts have inherent power to grant declaratory relief but that:

1. a declaration should not be made if it produces no foreseeable consequences for the parties; [3]

2. a declaration is normally granted as final relief and is not "an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment"; [4] and

3. it is not appropriate usually to grant a declaration "for the purpose of clarification of reasons for judgment of a court". [5]

   3. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at [38] (Mason CJ, Dawson, Toohey and Gaudron JJ, Brennan J agreeing).

   4. Warramunda Village Inc v Pryde (2001) 105 FCA 437; [2001] FCA 61 at [8] (Gray, Branson and North JJ).

   5. Mees v Roads Corporation [2003] FCA 410 at [8] (Gray J).

11. In those circumstances, Mr De Buse submitted:

The present Plaintiff by an Amended Statement of Claim sought damages in excess of the amount that it had already been paid following payment of an amount in excess of the amount now recovered. It follows in the Defendant’s submissions that:

a.   There is a res judicata on all issue of payment under the contract;

b.   A declaration would have no purpose other than as some form of putative form of alleged victory for the Plaintiff; and

c.   The reasons speak for themselves and no greater explanation of clarity will be provided by a declaration.

12. However, in this case, I think that a declaration will be of utility because it will serve the purpose of identifying, in the final orders of the Court, the dollar amount of the variations to which Payce would have been entitled under the Fit Out Agreement and the corresponding amount that Payce must now pay to the Council under s 32(3)(b) of the Act.

13. In my view, contrary to Mr De Buse's submissions, my reasons of 6 April 2021 do not "speak for themselves" in the sense that they do not identify the final amount to which Payce was entitled by reason of the various conclusions to which I came concerning the variations.

14. In those circumstances I propose to make a declaration and a notation in the form I proposed to the parties. In addition, by consent, I will make orders under s 32(3)(b) of the Act that Payce pay the Council the amount due and also to make directions, again by consent, for submissions concerning costs.

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Endnotes

Decision last updated: 18 May 2021