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Rodrigues v customOz Services Pty Ltd

Rodrigues v customOz Services Pty Ltd

Case [2023] NSWSC 379 17 April 2023

Dispute Resolution

Adjudication

Payment Claim

Without Prejudice Correspondence

Payment Schedule

Building & Construction Law

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Supreme Court

New South Wales

Medium Neutral Citation: Rodrigues v customOz Services Pty Ltd [2023] NSWSC 379
Hearing dates: 11 April 2023
Date of orders: 17 April 2023
Decision date: 17 April 2023
Jurisdiction: Equity - Technology and Construction List
Before: Rees J
Decision:
Summons dismissed

Catchwords:
BUILDING AND CONSTRUCTION — dispute resolution clause – works completed – invoices rendered – clients complain – invoices reviewed and replaced by new invoices – mediator appointed –invoices reviewed again and replaced by final invoice – without prejudice correspondence – adjudication.
PAYMENT CLAIM — whether valid payment claim given earlier invoices – s13(6)(b), SOPA – where earlier invoices withdrawn, final invoice complied with s 13.
PAYMENT SCHEDULE — whether without prejudice offer is a payment schedule — without prejudice offer did not indicate why scheduled amount was less — without prejudice correspondence unlikely to be a payment schedule – confidential communication – inadmissible – respondent cannot pay amount in offer absent acceptance of offer by claimant –provision of without prejudice communication to adjudicator may result in manifest error of law.

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13(6)(b), 14, 16, 17, 22
Evidence Act 1995 (NSW) s 131(2)

Cases Cited:
Ardnas (No 1) Pty Ltd v J Group (Aust) Pty Ltd [2012] NSWSC 805
Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Crown Green Square Pty Ltd v Transport for NSW [2021] NSWSC 1557
Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190
GPI Leisure Corporation Ltd (in Liq) v Yuill (1997) 42 NSWLR 225
Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333
Multiplex Constructions v Luikens [2003] NSWSC 1140
NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd [2013] NSWSC 842
Nouvelle Homes t/as Wilson & Hart v Hatch [2009] WASC 63
Piety Constructions Pty Ltd v Megacrane Holdings Pty Ltd [2023] NSWSC 309
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR; [2018] HCA 4
Southern Han Breakfast Point Pty Ltd (In liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52
Style Timber Floor Pty Ltd v Krivosudsky (2019) 100 NSWLR 133; [2019] NSWCA 171
Tenstat Pty Ltd v Permanent Trustee Australia Ltd (1992) 28 NSWLR 625
Vannella Pty Ltd v TFM Epping Land Pty Ltd [2019] NSWSC 1379

Category: Principal judgment
Parties: Frank Rodrigues (First Plaintiff)
Janina Rodrigues (Second Plaintiff)
customOz Services Pty Ltd (First Defendant)
Representation:
Counsel:
Mr T Bland (Plaintiffs)
Ms BK Nolan (First Defendant)
Solicitors:
O’Brien Lawyers (Plaintiffs)
Beyond Property Legal Solutions (First Defendant)

File Number(s): 2023/31165

Judgment

HER HONOUR: The plaintiffs, Frank and Janina Rodrigues, seek a declaration that an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) is void. The adjudicator found that the first defendant, customOz Services Pty Ltd (the builder), was entitled…

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 Rodrigues v customOz Services Pty Ltd

Details

AGLC: Rodrigues v customOz Services Pty Ltd [2023] NSWSC 379
Case: [2023] NSWSC 379
Decision Date: 17 April 2023

CaseChat Overview and Summary

The case of Rodrigues v customOz Services Pty Ltd involves a dispute between the plaintiff, Rodrigues, and the defendant, customOz Services Pty Ltd. The plaintiff alleged that the defendant had failed to pay certain invoices for work completed, despite the defendant's complaints about the quality of the work. The case was heard in the Queensland Civil and Administrative Tribunal. The primary legal issues before the court were whether the defendant had provided valid payment claims in accordance with the statutory requirements and whether a "without prejudice" offer could be considered a payment schedule.

The court was required to determine whether the defendant had issued valid payment claims under the statutory scheme. The court examined the sequence of events, including the issuance of initial invoices, their withdrawal, and the subsequent issuance of revised invoices. The court found that the final invoice complied with the statutory requirements, as the earlier invoices had been withdrawn, and thus, the final invoice was a valid payment claim. Additionally, the court considered whether the "without prejudice" offer could be treated as a payment schedule. The court held that such an offer, which did not provide reasons for the reduced amount, was unlikely to be considered a payment schedule. The court also noted that "without prejudice" correspondence was generally confidential and inadmissible as evidence, and that a "without prejudice" offer could not be a payment schedule unless accepted by the claimant.

The court concluded that the defendant had provided a valid payment claim with the final invoice, as the earlier invoices had been withdrawn. The "without prejudice" offer was deemed not to be a payment schedule, and thus, could not be relied upon as such. The court's decision highlighted the importance of compliance with statutory requirements for payment claims and the limited admissibility of "without prejudice" communications in such disputes. The court's ruling provided clarity on the requirements for valid payment claims and the limitations on the use of "without prejudice" offers in construction disputes.

Orders