Roar Fire Systems Pty Ltd v The Construction Studio
[2020] VCC 1576
•6 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
BUILDING CASES LIST
Case No. CI-20-03347
| Roar Fire Systems Pty Ltd | Plaintiff |
| v | |
| The Construction Studio Pty Ltd | Defendant |
---
JUDGE: | Judicial Registrar Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the Papers | |
DATE OF JUDGMENT: | 6 October 2020 | |
CASE MAY BE CITED AS: | Roar Fire Systems Pty Ltd v The Construction Studio | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1576 | |
REASONS FOR JUDGMENT
---
Subject: CONTRACTS
Catchwords: Building contract – payment claim – whether reference date available for payment claim – whether payment claim served prior to reference date valid.
Legislation Cited: Building and Construction Industry Security of Payment Act 2002 (Vic) ss3, 4, 7, 9(1),10B, 12, 14(2), 15, 16(2), 16(4), 17(2), 47, 48, 50; Civil Procedure Act 2010 (Vic) s61, 63.
Cases Cited: MKA Bowen v Carelli Constructions [2019] VSC 436;
Southern Han Breakfast Point Pty Ltd (in liquidation) v Lewrence Construction Pty Ltd (2016) 260 CLR 340;
Electricity Generation Corporation trading as Verve Energy v Woodside Energy Ltd & Ors [2014] HCA 7;
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA CLR 36;Byrnes v Kendle (2011) 243 CLR 253;
Codelfa v State Rail Authority of NSW (1982) 149 CLR 337;
Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd as trustee for the CGM Unit Trust & Anor [2020] VSC 414;
Cool Logic Pty Ltd v Citi-Con (Vic) Pty Ltd [2020] VCC 1261;
Metacorp Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199;
Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 865;
Castle Constructions Pty Ltd v N&R Younis Plumbing Pty Ltd [2019] NSWSC 225.
---
APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr W J Stephenson | KHQ Lawyers |
| For the defendant | Mr L J Hogan | Jeremy Johnson & Associates |
JUDICIAL REGISTRAR:
1 The plaintiff, Roar Fire Pty Ltd (“Roar Fire”) applies for judgment against the defendant, The Construction Studio Pty Ltd (“Construction Studio”) pursuant to s17(2)(a)(i) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (“the Act”). Roar Fire makes the application by summons on originating motion dated 24 July 2020. The application arises out of Roar Fire’s provision of wet fire services (“Works”) under a Sub-Contract Agreement dated 21 November 2019 (“the Sub-Contract”) at 5 Red Hill Terrace, Doncaster East (“the Site”). Roar Fire relies on one payment claim that it asserts was served pursuant to the Sub-Contract and in accordance with the Act, to which Construction Studio served a payment schedule, but has not paid the relevant amount.
2 Construction Studio opposes the entry of judgment in respect of the payment claim, on the basis that:
· the payment claim was not served pursuant to the Act;
· the scheduling of the amount due does not obviate Roar Fire’s need to comply with the Act;
· the payment claim was served before the applicable reference date; and
· the works the subject of the claim were performed in February and cannot relate to an earlier payment claim.
3 I am satisfied the plaintiff has a valid claim in relation to the payment claim and the plaintiff validly issued the claim in respect of a valid reference date.
4 Therefore, I will order that there be judgment for the plaintiff against the defendant in the sum of $32,373.00 and that the defendant pay the plaintiff’s costs of and incidental to the proceeding on the standard basis, in default of agreement, unless either party can show a basis for seeking a different order to costs. I invite the parties to prepare draft orders to give effect to these reasons, and any further issue as to costs will be determined on the papers.
The factual background
5 The plaintiff relies on two affidavits of Mr Mark Haynes, managing director of Roar Fire, sworn 21 July and 28 August 2020 in support of its application. The defendant filed an affidavit of Mr Corey Geeves, contracts administrator of Construction Studio, sworn 21 August 2020.
6 On 21 November 2019, pursuant to a subcontract, Construction Studio engaged Roar Fire to undertake the Works at the Site, on which Construction Studio was constructing a block of apartments as the head contractor. The subcontract was for the sum of $230,000, with works to commence in November 2019 and the date for completion in April 2020.
7 Relevantly, the subcontract provided that:
· By clause 3 (Claims & Payment) that:
(a) the Subcontractor is entitled to submit to The Construction Studio a payment claim for works completed to the date of the claim and any other amount the Subcontractor claims to be due under this Subcontract by no later than 4pm on the day nominated in Item 16 of the Subcontract Particulars.
(b)Payment claims must include sufficient detail to enable evaluation and substantiation of the progress claim by The Construction Studio including the Subcontractor’s assessment of the costs to complete the work under the Subcontract, and must include a completed copy of the Tender Breakdown Form reflecting the progress of the components of the work under the Subcontract in that document, a copy of the Subcontractor’s program, the certificate required by clause 3.4 and any other documents reasonably required by The Construction Studio.
(c)In assessing the payment claim, The Construction Studio shall take into account the Subcontractor’s valuation of work executed to the date of the progress claim and assess that against The Construction Studio’s valuation of the costs to complete the work under the Subcontract.
…
(e) Within 10 Business Days of receipt of a payment claim submitted in accordance with clauses 3.1(a) and (b) The Construction Studio shall assess the Subcontractor’s progress claim and may Issue to the Subcontractor a payment schedule stating the amount of the payment claim approved and the reasons for any difference between the claimed and approved amounts.
(f) Subject to receipt of a tax invoice in accordance with clause 3.2 The Construction Studio shall pay the amount stated in the payment schedule within 30 business days of the end of the month in which the claim is made.
· The date for claims was to be by the 25th day of each month (or such other date of each month notified by The Construction Studio) (item 16 of the particulars).
· The rate of liquidated damages was to be capped at $2,500 per day, with a 10% overall cap (item 7 of the particulars).
· The amount of security was to be 10% of each claim to a maximum of 5% of the contract sum. The retention amount was be given in the form of 2 x 2.5% unconditional bank guarantees by Roar Fire (item 10 of the particulars). [Emphasis added]
8 On about 1 December 2019, Roar Fire commenced works on the Site, undertaking a range of preliminary works until 14 February 2020, on which date it served its first and only payment claim.
9 The alleged payment claim was served by email to Mr Geeves and consisted of a tax invoice setting out the amount claimed and a more detailed breakdown setting out of the portions of the total contract price. The email from Ms Hibbins (Finance and Administration Manager of Roar Fire) to Mr Geeves stated:
“Please find attached our February invoice #1529 and progress claim for the above named project.”
10 The contract price breakdown and summary of completion showed the total amount of work completed was 21%, with a total cost amount of $47,700. This figure was reflected in the tax invoice, which including GST, resulted in a total claim of $52,470.
11 The tax invoice was endorsed with the words ‘this payment claim is made pursuant to the Building and Construction Industry Security of Payment Act 2002’ and was dated 25 February 2020, with a due date of 26 March 2020.
12 On 28 February 2020, Mr Geeves on behalf of Construction Studio emailed a payment schedule to Ms Hibbins of Roar Fire, which was endorsed with the words ‘this is a payment schedule under the Building and Construction Industry Security of Payment Act 2002’. The ‘summary of payment schedule’ noted the following:
· the response date was 10 March 2020;
· the claim period was 25 January 2020 to 25 February 2020;
· the scheduled amount was $32,700;
· the retention was $3,270;
· the total amount of the payment claim that Construction Studio proposes to make was $32,373.00 (inc GST); and
· the scheduled amount was less than the amount claimed because Construction Studio had a detailed assessment done on the site and had reduced the claim to the extent where it was satisfied to the value of work performed. Further, as Roar Fire had not supplied the bank guarantee pursuant to the contract, Construction Studio had withheld retention monies from the claim.
13 It is not in dispute that in around the first week of March 2020, Roar Fire left the Site. However, the circumstances surrounding this are less clear. Mr Haynes deposes that by February 2020, Roar Fire had completed most of the works associated with fire service installation for the basement second level and ground floor. He further deposes that Roar Fire left the Site as the wall framing required for the sprinkler rough in had not been installed, and they intended to return to the Site once they received notification to return.
14 Mr Geeves deposes that in early March, Roar Fire stopped work on the project and removed its equipment and materials from the Site.
15 Mr Haynes deposes that Roar Fire had no contact from Construction Studio until 31 March 2020, on which date he received an email from Mr Geeves requesting Roar Fire prepare to return on-site on 8 April 2020. He deposes between 31 March 2020 and 3 April 2020 neither he nor his staff received any contact from Construction Studio to change the arrangements to return to the Site from 8 April 2020.
16 On 3 April 2020 at 11.00am, Mr Pym, Construction Studio’s Construction Manager, wrote via email to Mr Haynes that (emphasis in original):
“Been trying to get in touch with you regarding getting back to 5 Redhill terrace Doncaster East. This is now EXTREMELY URGENT. Can you attend site immediately to progress the works which have been ready for you for some weeks now. This is EXTREMELY URGENT.”
17 Some 38 minutes later, at 11.38am, Mr Geeves emailed Mr Haynes with a notice of termination which stated:
“As a consequence of your firm discontinuing works on site in breach of clause 7.9 of the contract, failing to return to site to continue with the works, refusing to respond to emails and phone calls, your contract is hereby terminated as of immediately pursuant to clause 9.1(b) of the contract.
We will arrange for the works to be completed and we will look to you for any cost, expense and loss suffered or incurred.
All of our rights including against you personally as guarantor for the performance of your company [sic].”
18 Mr Geeves further deposes that Construction Studio did not pay any of the assessed amount pursuant to the payment schedule because of Roar Fire’s unlawful discontinuance of the works and to potentially set-off such sums against amounts that Construction Studio would be entitled to claim for the breach of contract.
The legal context
23 The purpose of the Act is to entitle persons who carry out construction work to progress payments. The Act provides a statutory entitlement to payment to contractors and subcontractors, and a means by which progress payments may be recovered.
24 Pursuant to s4 of the Act, a ‘construction contract’ is defined as a contract or other arrangement ‘under which one party undertakes to carry out construction work, or to supply related goods and services, for another party.’ ‘Construction work’ is set out at s5(a) of the Act as the ‘construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of buildings or structures forming, or to form, part of land (whether permanent or not).’
25 Pursuant to s9 of the Act, a person who has undertaken to carry out construction work under a construction contract is entitled to a progress payment under the Act on and from each reference date under the contract.
26 The term ‘reference date’, for the purposes of s9 of the Act, is defined in s9(2). It provides relevantly that a reference date in relation to a construction contract means ‘a date determined by or in accordance with the terms of the contract as … a date on which a claim for a progress payment may be made.’
27 In order to recover a progress payment, a claimant must first serve a ‘payment claim’ in accordance with s14 of the Act. Subsection 14(1) provides that ‘A person referred to in section 9(1) who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.’
28 Subsection 14(2) sets out the requirements for a valid payment claim. Relevantly, it ‘must identify the construction work … to which the progress payment relates’, ‘must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount), and ‘must state that it is made under the Act.’
29 Section 15(1) of the Act provides that a person on whom a payment claim is served may reply to the payment claim by providing a payment schedule to the claimant. Section 15(2) sets out the information which must be provided in a payment schedule.
30 Section 17 of the Act sets out the consequences of not paying a claimant in accordance with a payment schedule. Subsection 17(1) provides that the section applies if ‘a claimant serves a payment claim on a respondent’, ‘the respondent provides a payment schedule to the claimant … within the time required by the Contract’, ‘the payment schedule indicates a scheduled amount that the respondent proposes to pay to the claimant’ and ‘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 claim relates’.
31 Subsection 17(2)(a)(i) of the Act provides that in those circumstances, a claimant may: recover the unpaid portion of the scheduled amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction; …
32 Section 17(4) of the Act sets out the matters of which the Court must be satisfied before judgment is given in favour of the claimant. It provides that:
(4) If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the scheduled amount from the respondent as a debt—
(a) judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and
(b) the respondent is not, in those proceedings, entitled—
(i) to bring any cross-claim against the claimant; or
(ii) to raise any defence in relation to matters arising under the construction contract.
Analysis
Validity of payment claim
33 The defendant submits that the only issues for determination by the Court are whether there is a reference date for the purpose of the Act and whether the plaintiff has submitted its payment claim for the purpose of the Act prematurely.[1] The defendant did not press a claim in set-off against the amounts claimed, consistent with s17(4)(b) of the Act, and the court does not take into account any evidence going to the discontinuance of the works or any potential claims as to set-off.
[1]MKA Bowen v Carelli Constructions [2019] VSC 436
34 The plaintiff submits that the payment claim was issued validly under the Act, in accordance with a correct reference date pursuant to the Contract.
35 The defendant’s submission on whether Roar Fire has complied with the Act is solely in respect of issuing a payment claim before the valid reference date. The service of a payment schedule does not relieve the plaintiff of the burden to prove the payment claim was issued in accordance with the Act. Certainly, it is established law in Victoria that a defendant may raise certain matters in its defence to a payment claim enlivened by the formal requirements of the Act even if it did not do so in a payment schedule.[2]
[2] Ibid at [30].
36 The key issue in dispute is whether the construction of clause 3 and item 16 of the Contract, permitted a reference date to arise before the 25th day of each month.
37 Both parties accept that an existing reference date is a precondition to issue a valid payment claim, as outlined in Southern Han Breakfast Point Pty Ltd (in liquidation) v Lewrence Construction Pty Ltd[3] (“Southern Han”). However, they differ in the preferred interpretation of the contractual provisions.
[3] (2016) 260 CLR 340, [62].
38 The plaintiff relies on the phrase in item 16 of the Contract that the date for claims is ‘by the 25th day of each month’ to support its interpretation that a valid reference date may arise on any date between the first to the 25th day of each month.[4] It submits that the reasonable business person would not construe ‘by’ to mean ‘on’, and to interpret the clause in any other way which detracts from its plain language meaning would not be consistent with the ordinary rules of contractual interpretation.
[4] Submissions of plaintiff dated 8 September 2020, [16].
39 On the other hand, the defendant first submits that the parties intended that the reference date arise on the 25th day of each month. Counsel for the defendant admits that, while the inclusion of the word ‘by’ raises some ambiguity, it should not be interpreted to mean that reference dates arose on the first day of each month and if that were indeed the intention of parties, they would have expressly provided for this.
40 Secondly, the defendant submits that to favour the plaintiff’s interpretation of this clause would result in an uncommercial interpretation; Roar Fire would be entitled to claim work performed in a given month on the first day of that month, before the works were performed, which is prohibited by the Act. Finally, it notes that the payment claim was forward dated to 25 February, which it submits is consistent with the reference date being 25 February.
41 When defining reference dates in relation to a progress payment, the Act refers parties to the contract - the date being determined by or in accordance with the terms of the contract.[5] The question then is whether Roar Fire was entitled to submit the claim for payment when it did under the terms of the contract.
42 In relation to construction of terms of a contract, the defendant relied on the decision of the High Court in Electricity Generation Corporation trading as Verve Energy v Woodside Energy Ltd & Ors[6] (“Verve”) in which the High Court reaffirmed the objective approach of what the ‘reasonable businessman would have understood the terms of the contract to mean.’[7]
[5] s 9(2)(a).
[6][2014] HCA 7.
[7] Ibid [35].
43 The defendant further referred to the decision of Justice Gibbs in Australian Broadcasting Commission v Australasian Performing Right Association Ltd[8] (“ABC”) in which his Honour said:
The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, even though the construction adopted is not the most obvious, or the most grammatically accurate.
[8][1973] HCA CLR 36.
44 In Byrnes v Kendle[9] (“Byrnes”) and Codelfa v State Rail Authority of NSW[10] (“Codelfa”), Mason J established the ‘true rule’ as follows:
“The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning.”[11]
[9](2011) 243 CLR 253.
[10](1982) 149 CLR 337.
[11] Ibid, at [352].
45 The plaintiff referred to the decision of Justice Riordan in Watpac Constructions Pty Ltd v Collins & Graham Mechanical Pty Ltd as trustee for the CGM Unit Trust & Anor[12] (“Watpac”) in which his Honour addressed the principles of construction in commercial contracts to be applied by the courts. In order to answer ‘what a reasonable person would have understood those terms to mean’, the court should apply the following principles:
[12][2020] VSC 414.
“(a) the terms are construed objectively and the subjective intentions of parties are irrelevant;
(b) the objective approach requires reference to the text and its ordinary meaning, together with:
(vii) the context, being the entire text of the contract including matters referred to in the text; and
(viii) the purpose.
…
(c) Unless a contrary intention appears in the contract, the court is entitled to approach the task of interpretation on the assumption that the parties intended to produce a commercial result, and should construe it so as to avoid a commercial nonsense.”[13]
[13] Ibid [35].
46 In applying the approach in Watpac, the plaintiff submits, the objective and reasonable business person would not construe ‘by’ to mean ‘on’. Rather, the ordinary meaning of ‘by’ means ‘on or before’ or ‘not later than’ and indicates a period of time in which an action may be performed, having regard to the defined meaning.
47 The defendant submits that, when read together with clause 3.1 which provides that the plaintiff was entitled to make payment claims “on the day nominated by Item 16”, the parties intended that reference dates would arise on the 25th of each month.
48 Both parties address the recent decision of Judge Woodward in Cool Logic Pty Ltd v Citi-Con (Vic) Pty Ltd[14] (“Cool Logic”) in which there were four separate contracts, with three different provisions regarding reference dates:
[14][2020] VCC 1261.
· “by the 25th day of the month projected to end of month”;
· “by the 25th day of the month with payments no later than 45 days after the end of the month in which the claim is made”; and
· “no later than the 25 [sic] day of the month”.[15]
[15] Ibid, [7].
49 In Cool Logic, his Honour held that, on their proper construction, those agreements allowed for a payment claim to be issued from the 26th day of the month before, up to the 25th of the relevant month.[16]
[16] Ibid, [34].
50 The defendant submits that the payment clauses in Cool Logic and the present proceeding are distinctly different and relies on various cases in support of the view that it is ‘common ground’ that the use of the word ‘by’ a certain date was intended to mean ‘on’ that relevant date.[17] Further, the fact that this claim is a first claim, rather than a subsequent claim, should be regarded as a distinguishing factor. Particularly, the defendant notes the forward dating of the payment claim to 25 February 2020 (what the defendant submits is the reference date), despite it being served on 14 February 2020.
[17] Metacorp Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 865.
51 The defendant, submits that, when item 16 is read together with clause 3.1 which provides that the plaintiff was entitled to make payment claims “by no later than 4pm on the day nominated by Item 16”, the parties were required to nominate a day on which payment claims could be made, rather than calculate it in accordance with item 16. The defendant argues that the parties did nominate this day, being the 25th day of each month. If both the terms (“by” as contained in item 16 and “on” as contained in clause 3.1) were given their full meaning, an inconsistency would result between them.
52 The plaintiff, on the other hand, submits that neither of the arguments ventured by the defendant carry sufficient weight to depart from the decision in Cool Logic and that in fact, the payment clauses are substantially the same. The plaintiff submits that when reading the whole clause including “by no later than 4pm”, which the defendant had omitted from its submissions, no inconsistency arises and they are to be construed as stipulating a final date on which claims can be made.
53 The defendant further raises the comments of Parker J in Castle Constructions Pty Ltd v N&R Younis Plumbing Pty Ltd[18] (“Castle”) in which his Honour disagreed with an adjudicator’s decision that the substitution of ‘on’ to ‘by’ did not change the effect of the clause and held the view it was arguable that the expressed intent was to allow the contractor to bring the date of the claim forward.[19] His Honour noted, though was not required to decide, that this may raise difficult questions as to how such a discretionary arrangement would work and whether it would satisfy s13(1)(a) of the NSW Act (the equivalent of s14(1)(a) in the Victorian Act).
[18][2019] NSWSC 225.
[19] Ibid [74].
54 In my view, when read together, the plain language of clause 3.1(a) and item 16 operate to require the plaintiff to issue payment claims by 4.00pm on a date by the 25th of the relevant month. I agree with the plaintiff’s submissions, and find no distinguishing factor to merit a departure from the reasoning of Cool Logic.
55 Further, in relation to the “forward dating” of the payment claim to 25 February 2020, I note that while the payment schedule was served via email on 28 February 2020, which was 10 business days after 14 February 2020, the ‘response’ date on the document is listed as 10 March 2020, also 10 business days after 25 February 2020.[20] Therefore, Construction Studio too, have forward dated their documents and no prejudice arose out of the fact that the invoice forming part of the payment claim was dated 25 February 2020. The “forward dating” is not fatal to an otherwise valid claim under the Act in which a payment claim was validly served when a reference date arose (cf MKA Bowen v Carelli Constructions).
[20] Exhibit MH-5 of the affidavit of Mark Haynes sworn 20 July 2020.
56 I am not convinced by the defendant’s submissions that the plaintiff’s interpretation would result in an uncommercial interpretation nor a ‘capricious, unreasonable, inconvenient or unjust’ outcome. In my view, the term ‘by’ indicates the last day on which something may be done or completed. The plaintiff provides the analogy of court ordered dates by which parties are to provide evidence to demonstrate that parties understand that ‘by’ a certain date means it is the last or final date on which that task may be done. To apply another apt analogy, if a contractor informed a subcontractor it required certain works to be completed ‘by’ a particular date, it would be unreasonable for the subcontractor to hold the view that it was not permitted to finish earlier.
57 Further, in applying Riordan J’s approach, I do not find anything contained in the remainder of the contract which would contradict the plain meaning of the date for claims to be by the 25th day of each month.
Other matters
58 For completeness, I briefly refer to the peripheral arguments raised by the parties in the course of their material.
Unlawful discontinuance of works and set-off
59 Mr Geeves raises this matter in his affidavit,[21] though it is noted in the defendant’s reply submissions that no set off is claimed by the defendant. Mr Geeves deposes that Construction Studio did not pay due to Roar Fire’s unlawful discontinuance of the works, and to potentially set-off such sums against amounts that Construction Studio would be entitled to claim for Roar Fire’s alleged breach of contract.
[21] Affidavit of Corey Geeves sworn 21 August 2020 [12-14].
60 Mr Haynes denies that Roar Fire unlawfully discontinued the works and was preparing to return to the site on 8 April 2020 as previously requested by Construction Studio. He further deposes that the matters raised by Mr Geeves as to unlawful termination and set off are contrary to s 17(4) of the Act.
61 The Act expressly prohibits a respondent from bringing a cross claim or raising any defence in relation to matters arising under the construction contract.[22] Therefore, no set offs are available as a defence in the present summary procedure and cannot be included in the calculations to quantify the claim.
[22] s17(4)(b)(i-ii).
Claim for earlier works?
62 In the principal submissions for the defendant, it submits that the works the subject of the payment claim can only have related to the works performed in February.
63 The plaintiff commenced work on the Site in December 2019, and therefore two reference dates (by 25th day of December 2019 and 25th day of January 2020) arose prior to the February reference date. Therefore, it may be the defendant raises a question of whether a portion of the works were done in relation to previous reference dates and not as outlined in the Contract Price Breakdown and Summary of Completion, which outlines that all items of works were at “0%” complete the month prior to the payment claim.
64 The plaintiff submits that clause 3.1(a) of the Contract allows Roar Fire to claim payment for work completed to the date of the claim together with any amount the contractor claims to be due- which includes works done prior to 14 February 2020.
65 Even if the work in question was performed before February, Roar Fire would be entitled to claim it. In addition, works that arose in reference to a previous reference date but not claimed in a previous payment claim would be permitted.
Conclusion
66 Under the contract, Roar Fire was entitled to submit its claim for payment by the 25th day of a month. Consequently, Roar Fire became entitled to make a claim for a progress payment when it served its payment claim on 14 February 2020. Roar Fire was entitled to make a claim for a progress payment where a reference date arose for the purpose of s9(2) of the Act.
67 A payment schedule was served in response to the payment claim, scheduling amounts payable to Roar Fire totalling $32,373.00. The defendant has failed to make payment of the scheduled amounts by their due date or at all. Accordingly, the defendant became liable to pay the amount of $32,373.00 as a consequence of it having scheduled that amount as payable and having failed to make payment before the due date, being 15 April 2020 pursuant to s3.1(f) of the contract. As a result, Roar Fire is entitled, pursuant to s17(2)(a)(i) of the Act, to recover the full scheduled amount as a debt due in this court, plus interest pursuant to s12(2)(a) of the Act.
- - -
Certificate
I certify that these 16 pages are a true copy of the judgment of Judicial Registrar Burchell delivered on 6 October 2020
Dated: 6 October 2020
Simon Bobko
Associate to Judicial Registrar Burchell
1
11
0