Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd (Administrators Appointed)

Roberts Co (NSW) Pty Ltd (the claimant) appealed a decision concerning a payment claim made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). Sharvain Facades Pty Ltd (the respondent) had failed to provide a payment schedule within the time stipulated by the contract and the Act. The dispute centred on whether the respondent was liable to pay the full amount claimed due to the late provision of the payment schedule. The appeal was heard by Hammerschlag CJ in Eq, McHugh JA, and Griffiths AJA.

The primary legal issue before the court was the proper construction and application of sections 13 and 14 of the Act, particularly in relation to a contractual deeming clause. Specifically, the court had to determine whether a clause deeming service of a payment claim made after 5:00 pm on a business day to have occurred at 9:00 am on the next business day was effective to extend the time for providing a payment schedule under section 14 of the Act. The claimant argued that the payment claim was served on Friday, 28 February 2025, after business hours, and that the deeming clause meant it should be treated as served on Monday, 3 March 2025. This would have made the respondent's payment schedule, provided on 17 March 2025, within the 10-business-day period allowed by section 14.

The court held that the deeming clause did not operate to extend the time for service in the manner contended by the claimant. It reasoned that section 14 of the Act permits parties to agree on a shorter period for the provision of a payment schedule than the 10 business days otherwise allowed, but it does not permit them to agree on a longer period. Therefore, the deeming clause, which effectively sought to deem service on a later date than actual service, could not operate to extend the time for the respondent to provide a payment schedule beyond the 10 business days from the actual date of service. Consequently, the payment schedule was out of time, and the respondent became liable to pay the full amount of the payment claim.

The appeal was dismissed with costs.