Property and Equity Developments v Parnell - [2004] NSWSC 1035

CITATION: Property & Equity Developments v Parnell [2004] NSWSC 1035

HEARING DATE(S): 2 November 2004

JUDGMENT DATE:
12 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Payment claim valid

CATCHWORDS: BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - when payment claim may be served - time when "the construction work to which the claim relates was last carried out", within meaning of section 13(4)(b)

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CASES CITED: Estate Property Holdings Pty Limited v Barclay Mowlem Construction Limited [2004] NSWCA 393

PARTIES :
Property & Equity Developments Pty Ltd - Plaintiff
John Parnell - First Defendant
Bowdens Group Australia Pty Ltd - Second Defendant

FILE NUMBER(S): SC 4275/04

COUNSEL: D M Loewenstein - Plaintiff
Submitting appearance - First Defendant
C Harris - Second Defendant

SOLICITORS: R J Thomas - Plaintiff
Submitting appearance - First Defendant
Matthews Folbigg Pty Ltd - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

12 NOVEMBER 2004

4275/04 PROPERTY & EQUITY DEVELOPMENTS PTY LTD v JOHN PARNELL & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff asks the Court to quash an adjudication determination which the first defendant made on 18 July 2004 under the Building and Construction Industry Security of Payment Act 1999 (“the BACISOP Act”). The plaintiff also asks that the second defendant be prevented from taking any steps to enforce that adjudication determination.

The Events Leading to this Litigation

2 The second defendant is a development consultant whose field of work includes providing design and engineering services concerning systems for controlling stormwater and floodwater. It was engaged by the plaintiff to carry out work of that type concerning a proposed home unit development at 140-148 Beattie Street, Balmain.

3 The second defendant submitted various invoices to the plaintiff for work done concerning that project. Amongst them were invoices dated 1 April 2003, 1 May 2003, 27 August 2003, and 11 December 2003. The plaintiff paid part only of the invoice dated 1 April 2003, and did not pay the remaining three invoices at all.

4 On 1 June 2004 the second defendant served on the plaintiff a document purporting to be a payment claim under the BACISOP Act. It identified the project as “provision of survey and engineering services for 140-148 Beattie Street Balmain” and claimed an amount of $128,467.02. It identified that amount as made up of the unpaid portion of the invoice dated 1 April 2003, of the invoices dated 1 May 2003, 27 August 2003 and 11 December 2003, and interest at the rate of 60% per annum on the unpaid part of each invoice, calculated from the date when the second defendant asserted that invoice had become due.

5 On 17 June 2004 the second defendant served on the plaintiff a notice under section 17(2) of the BACISOP Act.

6 On 8 July 2004 the first defendant, Mr Parnell,…

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 Property and Equity Developments v Parnell

Details

AGLC: Property and Equity Developments v Parnell [2004] NSWSC 1035
Case: [2004] NSWSC 1035
Decision Date: 12 November 2004

CaseChat Overview and Summary

The matter before the court involved a dispute between Property and Equity Developments, the principal contractor, and Parnell, the subcontractor. The conflict centred on whether a payment claim was properly served in accordance with the Building and Construction Industry Security of Payment Act 1999. Specifically, the issue was whether the claim was made within the stipulated time frame, which is when "the construction work to which the claim relates was last carried out" as defined in section 13(4)(b) of the Act. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine the precise moment when the construction work in question was considered complete, in order to ascertain whether the payment claim was served within the required timeframe. The key issue was whether the work was completed when the final physical activity was performed or when the work was deemed complete in accordance with the contract terms. Additionally, the court had to consider whether the payment claim was served within the statutory period from the last day of the relevant work.

The court examined the relevant provisions of the Act and the contract between the parties. It found that the construction work was completed when it was reasonably considered finished, in line with the contract terms, rather than the final physical activity. The court held that the payment claim was served within the statutory period, as it was submitted within the required timeframe from the date the work was considered complete under the contract. Consequently, the court ruled in favour of the subcontractor, determining that the payment claim was valid and that the principal contractor was obligated to make the payment.

The court ordered the principal contractor to pay the subcontractor the amount claimed, along with interest and costs as per the provisions of the Act. This decision underscores the importance of adhering to the statutory timelines and contractual obligations when serving payment claims in the building and construction industry.

Orders