Ramvek Pty Ltd v Visioneer Builders Pty Ltd - [2025] VCC 1155

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

BUILDING CASES LIST

Case No. CI-24-06028

RAMVEK PTY LTD (ACN 006 920 529)	Plaintiff
v
VISIONEER BUILDERS PTY LTD (ACN 126 263 287)	Defendant

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JUDGE:	Her Honour Judge Kirton
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2025
DATE OF JUDGMENT:	18 August 2025
CASE MAY BE CITED AS:	Ramvek Pty Ltd v Visioneer Builders Pty Ltd
MEDIUM NEUTRAL CITATION:	[2025] VCC 1155

JUDGMENT
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Subject:SUMMARY JUDGMENT - Building and Construction Industry Security of Payment Act 2002 (Vic)
Catchwords: Claim under s 17(2)(a)(i) Building and Construction Industry Security of Payment Act 2002 (Vic) where payment schedule issued and amount not paid – defence that payment claim included an excluded amount –Court’s role to enforce purpose of the Act and give judgment on the payment schedule
Claim under s 16(2)(a)(i) Building and Construction Industry Security of Payment Act 2002 (Vic) where no payment schedule issued – defences – the payment claim was a repeat of the previous payment claim – no further work was carried out – no new reference date arose, alternatively, if a reference date arose it was served more than three months after the reference date

Legislation Cited: Building and Construction Industry Security of Payment Act 2002 (Vic); Civil Procedure Act 2010 (Vic); Supreme Court (General Civil Procedure) Rules 2015 (Vic); County Court Civil Procedure Rules 2018 (Vic); Domestic Building Contracts Act 1995 (Vic) .
Cases Cited:John Beever v Roads Corporation [2018] VSC 635; Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44; Commercial & Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd [2015] VSC 426; Citi Con (Vic) Pty Ltd v Trojan Built Pty Ltd [2020] VSC 557.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Sharkey	Hendersons Legal
For the Defendant	B Reid	Moray & Agnew Lawyers

HER HONOUR:

Summary

In this proceeding the plaintiff (Ramvek) seeks judgment against the defendant (Visioneer) pursuant to sections s 16 and 17 of the Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act). The application arises out of joinery works which Ramvek performed for Visioneer in Toorak (the works) under a contract dated on or around 11 May 2022 (the Contract).
Ramvek submits that it is entitled to judgment in respect of two payment claims:
(a)Payment claim 6 (PC6) dated 31 October 2023, in response to which Visioneer provided a payment schedule certifying the sum of $51,488.35 plus GST due to Ramvek. However, Visioneer failed to make payment and Ramvek relies on s 17(2)(a)(i) of the Act.
(b)Payment claim 8 (PC8) dated 8 April 2024 in the sum of $30,765.27, which Visioneer failed to respond to. Ramvek relies on s 16(2)(a)(i) of the Act.
Visioneer says it has a good defence to each claim for payment on the following grounds:
(a)In relation to PC6, it says that the claim was not made in accordance with the construction contract as is required by s 9 of the Act. The claim included claims for work that should have been claimed in a subsequent claim, that is, on the following reference date.
(b)In relation to PC8, it says that this claim is a repeat of Ramvek’s payment claim 7 (PC7) issued on 24 November 2023. Ramvek did not attend site or undertake any new construction work following 17 October 2023. Accordingly, PC8 is invalid as:
(i)     it is a second payment claim in respect of the 25 October 2023 reference date; or
(ii)    further or alternatively, it was served more than three months after the 25 November 2023 reference date, if such reference date arose, or
(iii)   no new reference date was capable of arising in the absence of any work being completed by Ramvek after 17 October 2023.
In my judgment, Ramvek succeeds on its claim in relation to PC6, but fails in respect of its claim for PC8. My reasons are set out below.
The evidence
Ramvek’s application is supported by the following affidavits:
(a)Affidavit of David John Sims dated 11 October 2024;
(b)Affidavit of David John Sims dated 2 December 2024;
(c)Affidavit of David John Sims dated 16 December 2024.
In response, Visioneer filed the following affidavits:
(a)Affidavit of James Gooley dated 28 November 2024;
(b)Affidavit of James Gooley dated 6 December 2024.
The facts are largely agreed. It is agreed that the Act applies to the Contract. There is no dispute that Ramvek caried out works under the Contract and rendered payment claims, including PC6 and PC8. The parties agree that the Contract provided a reference date of the 25th of each month within the meaning of s 9 of the Act.
They disagree on whether it was a ‘staged contract’. Visioneer contends that a stage must be completed before a reference date in order for a claim to be valid. Ramvek disputes that it is a staged contract.
They also disagree on whether Ramvek carried out or completed further works after 25 October 2023.
The legal principles
The application is made by summons on Originating Motion. There is no dispute that such an application is an application for summary judgment, and ss 61 and 63 of the Civil Procedure Act 2010 (Vic) (the CPA) and rule 22 of the Supreme Court (General Civil Procedure) Rules 2015 (the SC Rules) and the County Court Civil Procedure Rules 2018 (Vic) (the CC Rules) provide the sole procedural mechanism and test to determine whether summary judgment can be entered.[1] Ramvek must demonstrate that Visioneer’s defence to the application has no real prospect of success.
[1]John Beever v Roads Corporation [2018] VSC 635 (‘Beever’).
The principles to be applied in determining proceedings commenced under the Act are well known. The Act operates to provide timely payment to contractors in the building industry.
A payment claim must comply with s 14(2) of the Act. In particular, it must:
(a)identify the construction work or related goods and services to which the progress payment relates; and
(b)indicate the amount of the progress payment that the claimant claims to be due (the claimed amount);
(c)must not include excluded amounts (as defined at s 10B); and
(d)must state it is made under the Act.
If a payment schedule is issued in response to a payment claim, and the scheduled amount is not paid, then a claimant is entitled to exercise the procedures set out in s 17(2)(a)(i) of the Act. If an application is made to a court to recover the unpaid portion of the scheduled amount, sub-s 17(4)(a) requires the court to be satisfied that:
(a)a payment claim was served;
(b)a payment schedule was provided within the required time indicating payment to the claimant; and
(c)the schedule amount was not paid.
If no payment schedule is issued in response to a payment claim, the respondent becomes liable to pay the claimed amount to the claimant on the due date of the progress payment to which the payment claim relates. In those circumstances, the claimant may apply to a court under s 16(2)(a)(i) of the Act to recover the unpaid portion of the claimed amount as a debt due. Subsection 16(4)(a) provides that judgment in favour of the claimant is not to be given unless the court is satisfied that:
(a)the respondent failed to issue a payment schedule and pay the claimed amount; and
(b)the claimed amount does not include any excluded amount.
It is also well established that in a proceeding issued under s 16(2) of the Act, a respondent is not entitled to raise any defence in relation to matters arising under the construction contract, by reason of s 16(4)(b)(ii). The available defences must concern either the nature of the underlying contract, or the form and service of the purported payment claim, and thus whether the payment claim is effective to trigger the procedures established by Part 3 of the Act. More particularly, the defences to a payment claim enlivened by the formal requirements of the Act are, in substance, that the payment claim:
(a)does not relate to a “construction contract” (including because it does not involve carrying out “construction work”), or it relates to a construction contract excluded from the operation of the Act under s 7 (for example, a construction contract that forms part of a loan agreement, or one that is a domestic building contract under the Domestic Building Contracts Act 1995 (Vic));
(b)fails to satisfy the formal requirements of s 14(2) of the Act (for example, by failing to identify the construction work, or failing to state that the claim is made under the Act);
(c)was made when no valid reference date existed, including where it is served before an applicable reference date, or relies on a reference date that has already been used up by an earlier payment claim;
(d)includes variations that are “excluded amounts” under s 10B of the Act;
(e)was not validly served on the respondent under either the terms of the contract, or under s 50 of the Act; and
(f)in rare circumstances, where a respondent alleges that they are not party to, or are not liable under the contract.
Defences in the nature of estoppel and misleading and deceptive conduct may also be available in certain circumstances.
Payment Claim 6
Ramvek issued PC6 on 31 October 2023. Visioneer issued a payment schedule in response to PC6 pursuant to s 15 of the Act certifying the sum of $51,488.35 plus GST to be paid (Claim 6 Scheduled Amount). Visioneer has not paid the Claim 6 Scheduled Amount.
Ramvek submits that the Court can be satisfied that:
(a)Ramvek issued PC6, being a payment claim pursuant to s 14, on Visioneer;
(b)Visioneer provided the PC6 Schedule, being a payment schedule within the meaning of s 15, to Ramvek within the prescribed time;
(c)the PC6 Schedule indicated the PC6 Scheduled Amount; and
(d)Visioneer failed to pay the PC6 Scheduled Amount.
Accordingly, it is entitled to summary judgment under s 17(2)(a)(i) for $56,637.19 (being $51,488.35 plus GST). Visioneer is not entitled to now raise a defence that PC6 included amounts that Ramvek was not entitled to claim.
Ramvek submits the effect of s 17 is that where a payment schedule has been issued, the Court does not look behind the scheduled amount.[2] The Court does not need to be satisfied the scheduled amount determined by the respondent does not include excluded amounts. All the Court needs to be satisfied of is that the claimed amount meets the requirements of ss 4 and 14. PC6 does this.
[2]Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44 (‘Yuanda’).
In defence of the claim, Visioneer submits that PC6 was not made in accordance with the Act. The work claimed in PC6 was not completed prior to the claim being made, and so no reference date had arisen and PC6 was invalid.
A valid reference date is a necessary precondition for a valid payment claim under the Act and the reference date is to be determined in accordance with the Contract. The reference date in this instance for PC6 is 25 October 2023 for works completed from 26 September 2023 to 25 October 2023.
The purported PC6 was made on 31 October 2023. It was attached to an email in which Ramvek stated, among other things, that:
Please note that all of the above is inclusive of works that will occur this Friday 3 November – relating to Variation VO3 (Southern Kitchenette – above)
Visioneer contends that the effect of the contractual terms is that Ramvek could make a claim on the 25th of each month for work completed on or before the 25th of the month in which the claim was made. If work was done after the 25th of the month, this work would be claimed in the following month. That is, Ramvek completes work in a relevant month to trigger a reference date and reference dates continue to arise while works are being completed.
The Contract provided that all invoices must be submitted “by the 25^th of each month” and:
Progress claims are to be submitted at the completion of works of each stage, on or before 25th of each month. Claims will be processed and paid by the end of the following month.
Visioneer says that the inclusion of the words “at completion of works of each stage” is significant as it only allowed Ramvek to claim for works it had in fact completed. The Contract term only allowed for Ramvek to claim for work it had completed up and until the 25th day of each month and further it did not allow Ramvek to make claims for work it had not performed as at the 25th of month.
Visioneer relies on the decision of Vickery J in Commercial & Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd[3] (CIC Group). His Honour considered s 9 of the Act and held:
The text ‘calculated by reference to [the relevant reference date]’ in s 9(1) of the Act simply means that a payment claim for a progress payment made under the Act is to be calculated in respect of work done up to and including the relevant reference date and not beyond it. Payment for all such work is claimable, regardless of whether or not the work had been performed since the preceding reference date or prior to the preceding reference date.
As long as the claimed work had been done or the materials supplied on or before the relevant reference date, the progress claim made under the Act can be calculated by reference to the reference date for the purposes of s 9(1) of the Act. The statutory scheme for the making of valid payment claims provides for no other requirement in relation to the time when the work the subject of the payment claim was performed, or when the materials were supplied.
(emphasis added)
[3]Commercial & Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd [2015] VSC 426 [101] – [102] (‘CIC Group’).
Visioneer contrasted the wording of the contract in CIC Group with that considered by Stynes J in Citi Con (Vic) Pty Ltd v Trojan Built Pty Ltd [2020] VSC 557 (Citi Con)[4]. In Citi Con, the contract provided the “Time for payment claims” is the “25th of each month projected to the end of month”. That is, as found by her Honour, there was no limitation included in the subcontract that would limit progress claims to work completed on or before the reference date.
[4]Citi Con (Vic) Pty Ltd v Trojan Built Pty Ltd [2020] VSC 557 (‘Citi Con’).
Visioneer submits that the terms of the present Contract are similar to CIC Group, and should be distinguished from Citi Con.
I accept Visioneer’s submission that this was in effect a staged contract. To read the term of the Contract any other way would mean that the words “at completion of works of each stage, on or before 25th of each month” would have no work to do. It is a basic rule of construction that words used should not be construed to have no purpose.
Accordingly, I am satisfied that a payment claim for a progress payment is to be calculated in respect of work done up to and including the relevant reference date and not beyond it. As the purported PC6 was made on 31 October 2023 for work not yet performed (per Ramvek’s email which stated that the work would occur on 3 November 2023), it is a payment claim served before an applicable reference date – which would be 25 November 2023.
Having said that, I do not agree with Visioneer’s submission that as a result, it is not bound by its payment schedule.
Based on the reasoning of the Court of Appeal in Yuanda[5], I accept Ramvek’s submission that the effect of s 17 is that where a payment schedule has been issued, the Court should not look behind the scheduled amount. JJA McLeish and Niall (as his Honour then was) discussed the operation and purpose of the Act, as follows:
Taken together, these provisions suggest that the Court has a limited role, confined to identifying and enforcing statutory liabilities as debts. The task of adjudication is larger. Where it takes place, excluded liabilities are expressly required to be deducted and a new statutory liability for the adjudicated amount is substituted. Again, the Court’s role is confined to ordering payment of that amount to the extent it is unpaid.[6]
Two relevant and connected policies are evident in the relevant provisions of the Act. First, where there are substantive issues in dispute about the contents of a payment claim, the proper course is to pursue adjudication…[7]
The Act therefore exhibits a clear policy that disputes regarding liability for payment are dealt with by adjudication, with the Court’s function being to order recovery of unpaid amounts.[8]
(emphasis added)
[5]Yuanda (n 2).
[6]Yuanda (n 2) [17].
[7]Yuanda (n 2) [18].
[8]Yuanda (n 2) [19].
In the context of s 16(4)(a)(ii) of the Act, the Court held:
A tolerably clear statutory scheme emerges, by which, if there is a dispute about the extent to which excluded amounts are being claimed, that is a matter for adjudication. If there is no dispute, a claimant may proceed straight to court seeking recovery. At that point, the Court ‘is not to’ give judgment in favour of the claimant unless it is satisfied that the claimed amount does not include ‘any’ excluded amount...[9]
(emphasis added)
[9]Yuanda (n 2) [21].
The above comments were made in relation to s 16 (i.e. claims where no payment schedule was issued). The Court in Yuanda did not expressly consider claims under s 17. However, its comments addressing whether an excluded claim can be severed from a payment claim confirm the Court’s view that if there is a dispute about a payment claim, that should have been referred to adjudication. It is not the Court’s role under the Act to go behind the claim, other than in the circumstances of s 16(4):
It is also because a payment claim which contains an excluded amount within the claimed amount is still a valid payment claim. That is evident from the requirement that the respondent’s payment schedule identify alleged excluded amounts, and the obligations on the Court and an adjudicator in respect of excluded amounts. If the payment claim were simply invalid, these provisions would have no foundation upon which to operate… [10]
(emphasis added)
[10]Yuanda (n 2) [31].
Section 17 does not contain a similar proviso to s 16(4)(a)(ii). That is, in claims under s 17(2)(a)(i), the Court is not required to be satisfied that the claimed amount does not include any excluded amount. Instead, the only matters the Court must be satisfied of are those in sub-s (1), being:
(a)a claimant serves a payment claim on a respondent; and
(b)the respondent provides a payment schedule to the claimant by the earlier of -
(i) the time required by the relevant construction contract; or
(ii) within 10 business days after the payment claim is served; and
(c)the payment schedule indicates a scheduled amount that the respondent proposes to pay to the claimant; and
(d)the respondent fails to pay the whole or any part of the scheduled amount to the claimant on or before the due date for the progress payment to which the payment claim relates.
I accept Ramvek’s submission that on the evidence before me I can be satisfied of those four matters. Accordingly, I find that Ramvek is entitled to recover the unpaid portion of the scheduled amount from Visioneer as a debt due.
Payment Claim 8
Payment Claim 8 was issued on 8 April 2024 claiming $30,765.27 including GST. There is no dispute that Visioneer did not provide a payment schedule in response to PC8. Ramvek’s claim is brought under s 16(2)(a)(i) of the Act.
In response, Visioneer submits that PC8 is a repeat of Payment Claim 7, which was issued on 24 November 2023 claiming $30,765.27. Each of PC7 and PC8 comprise 5 pages, with an invoice as the first page followed by 4 pages of tables providing a line-by-line breakdown of the works. The five pages each of PC7 and PC8 are identical, except for the date and the invoice number. By operation of s 14(8) of the Act, a claimant cannot serve more than one claim in respect of a reference date.

Ramvek does not agree that PC8 is a repeat of PC7. It relies on the evidence of David Sims[11] who deposes that PC8 was for works carried out between 18 October 2023 to 10 July 2024, as recorded in Ramvek’s timesheets. The works included deliveries, apprentice work in the factory, machinist, set out, shopfitter, site manufacture, sit projects and warehouse.
[11]Affidavit of David Sims dated 2 December 2024, 2 [9]–[10]; 20-44, Exhibit DS-2.
On the other hand, Visioneer points out that none of these items are listed in PC8. Instead, James Gooley referred to PC7 and noted the identical items claimed in both PC7 and PC8. Section 14(2)(c) of the Act requires a payment claim to identify the construction work to which the progress payment relates. PC8 does not do that, if it purports to include the items listed by David Sims in Ramvek’s timesheets.
There was no explanation from Ramvek at the time it served PC8 as to why PC8 appears on its face to identify the same construction work carried out in October and November 2023, which was claimed in PC7.
Further, the evidence of James Gooley for Visioneer is that Ramvek ceased attending site on or around 17 October 2023, and Visioneer’s records do not identify any site attendance by Ramvek after this date.
There is accordingly a factual dispute as to whether Ramvek carried out or completed any work, on site or elsewhere, after 17 October 2023.
Visioneer submits that in those circumstances, it was understandable that it did not respond when it received PC8. It appeared to be a duplication of PC7 and/or was out of time, as it appeared to be a claim for work carried out in October and November 2023.
If it is accepted that no work was completed after 17 October 2023, the last reference date to arise under the construction contract was 25 October 2023, and by operation of s 14(4)(b) of the Act, Ramvek had 3 months to make such claim, meaning it had until 25 January 2024 to claim for the reference date of 25 October 2023. However, the 25 October 2023 reference date was used by Ramvek when it issued its PC7 on 24 November 2023. By operation of s 14(8) of the Act a claimant cannot serve more than one claim in respect of a reference date.
Alternatively, Visioneer submits that if Ramvek’s timesheets are accepted as accurate, and the Court is satisfied Ramvek did perform those works, it is significant that David Sims did not depose that any works were actually completed. Visioneer contends that under the Contract, a reference date arises when Ramvek completes work in a relevant month. Reference dates continue to arise while works are being completed. As the works purportedly claimed in PC 8 were not completed, Ramvek was not entitled to make the payment claim.
In my view, because there is a factual dispute as to whether Ramvek carried out or completed any work, on site or elsewhere, after 17 October 2023, it is not appropriate to grant summary judgment. Further, I agree with Visioneer that PC8 appears to be a duplicate of PC7. The same items of work and amounts claimed in each.
Even if I accept Ramvek’s evidence that further works were carried out after the reference date of 25 October 2023 (used in PC7), those works are not recorded in PC8. This is contrary to the s 14(2)(c) of the Act, which requires a payment claim to identify the construction work to which the progress payment relates.
Further, some of the works purportedly included in PC8, as deposed to by David Sims, were carried out after the reference date of PC8. PC8 was dated 8 April 2024. Presumably the reference date was 25 March 2024. However, David Sims refers to ‘set out’ works carried out on 9 and 10 July 2024, ‘shopfitting’ works on 24 May 2024 and ‘warehouse’ on 21 May 2024. He has not explained how these works can have been included in a reference date of 25 March 2024. As discussed above, I have found that progress claims under the Contract could only be made for works completed by the 25^th of the month.
Accordingly, I am not satisfied that Ramvek is entitled to judgment on PC8.
Conclusion
For the above reasons I will order judgment for Ramvek in the sum of $56,637.19 under s 17(2)(a)(i) and otherwise dismiss the application for judgment under s 16(2)(a)(i).
I will make the following orders unless there are any objections by 28 August 2025 at 4.00pm. Ramvek should also provide interest calculations in respect of the judgment sum by that date:
(a)The requirements of rules 5.03(1) and 8.03 of the County Court Civil Procedure Rules 2018 are dispensed with.
(b)The plaintiff is authorised to commence this proceeding by originating motion in Form 5C.
(c)The defendant pay the plaintiff $56,637.19.
(d)The defendant pay interest on the judgment sum pursuant to s 12(2) of the Building and Construction Industry Security of Payment Act2002 (Vic).
I have not heard the parties in respect of costs. As the plaintiff has had mixed success, I propose to make no order as to costs, unless any application is made for any other form of order. Any application for costs should be made by 28 August 2025

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Certificate

I certify that these 13 pages are a true copy of the judgment of her Honour Judge Kirton delivered on 18 August 2025.
Dated: 18 August 2025

Mahi Joshi
Associate to Her Honour Judge Kirton