Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337 Hearing dates: 8 December 2017 Decision date: 18 December 2017 Before: Macfarlan JA at [1];
Gleeson and Leeming JJA at [36]Decision: 1. Grant leave to appeal from orders 2(a) and 3 made on 28 September 2017.
2. Direct that the appellant Quickway file a notice of appeal in the form of the draft notice of appeal but confined to the Canterbury determination.
3. Appeal allowed.
4. Quash the adjudication determination of the second respondent dated 28 July 2017 with reference number 2017-TASC-059.
5. Set aside orders 2(a) and 3 made on 28 September 2017, and in lieu thereof, order that the amount paid to the respondent Electrical be repaid with interest.
6. Order that the respondent Electrical pay Quickway’s costs at first instance and on appeal.Catchwords: BUILDING AND CONSTRUCTION – claims for progress payments under Building and Construction Industry Security of Payment Act 1999 – underlying contractual debts assigned – whether payment claims valid – whether adjudication determinations valid Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8(1), 13, 14, 15, 16, 17, 22, 25, 32
Conveyancing Act 1919 (NSW), s 12
Supreme Court Act 1970 (NSW), s 101(2)(r)Cases Cited: All Seasons Air Pty Ltd v Regal Consultancy Services Pty Ltd [2017] NSWCA 289
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Grave v Blasivic Holdings Pty Ltd t/as Cross Building Services (2010) 79 NSWLR 132; [2010] NSWCA 324
Lewis v Condon; Condon v Lewis (2013) 85 NSWLR 99; [2013] NSWCA 204
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52; 91 ALJR 233Category: Principal judgment Parties: Quickway Constructions Pty Ltd (Appellant)
Electrical Energy Pty Ltd (First Respondent)
Paul J Hick (Second Respondent)Representation: Counsel:
Solicitors:
H K Insall SC (Appellant)
F P Hicks SC / D J Byrne (First Respondent)
Submitting Appearance (Second Respondent)
Hugh & Associates Lawyers (Appellant)
Piper Alderman (First Respondent)
Submitting Appearance (Second Respondent)
File Number(s): CA 2017/302329 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity Division
- Citation:
- [2017] NSWSC 1140
- Date of Decision:
- 31 August 2017
- Before:
- Parker J
- File Number(s):
- SC 2017/237797
Judgment
-
MACFARLAN JA: In March 2017 the applicant (“Quickway”) engaged the respondent (“Electrical”) to undertake cable hauling works at electrical substations in Canterbury and Leichhardt. On 22 April 2017 Electrical sent Quickway invoices in the sums of $24,725.25 and $41,250 for work done at the substations. Electrical contends that the invoices constituted claims for progress payments (“payment claims”) pursuant to s 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the “Act”). After Quickway lodged “payment schedules” pursuant to s 14 of the Act, which disputed Electrical’s claims, the disputes were the subject of adjudications pursuant to s 17 of the Act. These adjudications were conducted by…
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- AGLC
- Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337
- Case
- [2017] NSWCA 337
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether payment claims made by Electrical were valid, and consequently, whether the adjudication determinations made in favour of Electrical were valid, given the assignment of the contractual debts. Specifically, the court had to consider the effect of the assignment on the ability of the assignee to make a valid payment claim under the Act.
The Court of Appeal reasoned that a payment claim under the Act must be made by the person who is entitled to progress payments under the construction contract. In this instance, the construction contract was between Quickway and a third party, and the right to progress payments under that contract had been assigned to Electrical. However, the court held that the assignment of the debt did not operate to transfer the right to make a payment claim under the *Security of Payment Act*. Therefore, Electrical was not the party entitled to progress payments under the construction contract at the time the payment claims were made. The court concluded that the payment claims were invalid, which in turn rendered the adjudication determinations invalid.
Consequently, the appeal was allowed. The adjudication determination made on 28 July 2017 was quashed, and the previous orders of the court were set aside. The court ordered that the amount paid to Electrical be repaid with interest, and that Electrical pay Quickway’s costs at first instance and on appeal.
Orders
Orders of the court
1. Grant leave to appeal from orders 2(a) and 3 made on 28 September 2017.
2. Direct that the appellant Quickway file a notice of appeal in the form of the draft notice of appeal but confined to the Canterbury determination.
3. Appeal allowed.
4. Quash the adjudication determination of the second respondent dated 28 July 2017 with reference number 2017-TASC-059.
5. Set aside orders 2(a) and 3 made on 28 September 2017, and in lieu thereof, order that the amount paid to the respondent Electrical be repaid with interest.
6. Order that the respondent Electrical pay Quickway’s costs at first instance and on appeal.
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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