Rokez Constructions Pty Ltd v CXM Building Constructions Pty Ltd

[2013] VCC 1229

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST

BUILDING CASES DIVISION

Case No. CI-13-04732

ROKEZ CONSTRUCTIONS PTY LTD	Plaintiff
v.
CXM BUILDING CONSTRUCTIONS PTY LTD	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2013
DATE OF JUDGMENT:	17 September 2013 (revised 18 September 2013)
CASE MAY BE CITED AS:	Rokez Constructions Pty Ltd v. CXM Building Constructions Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VCC 1229

REASONS FOR JUDGMENT

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Catchwords:             Interlocutory injunction – Adjudicator’s determination upon a payment claim pursuant to the Building and Construction Industry Security of Payment Act 2002 (Vic) – Whether the claim stated that “it is made under the Act” – Validity of determination.    

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Kincaid	MSB Lawyers
For the Defendant	Mr M. Bromley	Moores Legal

HIS HONOUR:

1The issue for determination in this application is whether a statement on a tax invoice that, “This invoice is written and incorporates the Building and Construction Industry Security of Payment Act 2002 (Vic), Act number 15/2002 version incorporating amendments as at 26 July 2006” complies with the requirements of section 14(2)(e) of the Act that a payment claim “must state that it is made under this Act”.

2The plaintiff, in support of an interlocutory injunction, submits that the statement on the invoice was insufficient compliance with the Act and, therefore, the adjudication made by an adjudicator pursuant to the Act on 9 September 2013 was void. The plaintiff submits that this is a serious issue to be tried and an injunction should be granted until the trial of the Originating Motion which seeks a declaration that the adjudicator’s determination is void.

3There are many decisions of the courts relating to the Act, particularly by Vickery J, the Judge in Charge of the Technology, Engineering and Construction List in the Supreme Court. In Hickory Developments Pty Ltd v Schiabello (Vic) Pty Ltd [2009] VSC 156 (“Hickory”), Vickery J examined the purpose of the Act and under the heading, “Excessively technical objections not countenanced under the Act”, he quoted with approval at paragraph 164 from the judgment of Palmer J in Brookhollow Pty Ltd v R&R Consultants Pty Ltd & Anor [2006] NSWSC 1 at paragraph 41 that “a payment claim which does not, on its face, purport in a reasonable way to…state that it is made under the Act fails to comply with an essential and mandatory requirement of section 13(2) so that it is a nullity for the purposes of the Act”.

4In relation to the specific matters challenged by the plaintiff before Vickery J in Hickory, His Honour concluded at paragraph 165 that, “There was no breach of section 14 of the Act, and if there was any breach in the manner alleged by Hickory, it did not result in the payment claim being a nullity”.

5Mr Kincaid of counsel, for the plaintiff, referred to the statement in the judgment of McHugh J in Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at paragraph 109 that, “When the express words of a legislative provision are reasonably capable of more than one construction and either the purpose of the provision or any other provision in the legislation throws doubt on that construction, a Court cannot ignore it and substitute a different constriction because it furthers the object of the legislation”.

6The only authority Mr Kincaid referred to in which the specific provision had been considered was a decision in this Court of His Honour Judge Shelton in AMD Formwork Pty Ltd v Yarra Man Construction Group Pty Ltd, (3 August 2004). His Honour said at paragraph 21 that, “The purpose of section 14 (3)(e) is presumably to alert the recipient to the fact that the claim has been made under the Act which may have far-reaching consequences for it if it does not avail itself of procedures available to it under the Act”. His Honour found that the incorporation of two earlier invoices, which did not state that they were made under the Act as required by the section, was cured by incorporating those claims in a later claim which did comply with the Act.

7Mr Bromley of counsel, for the defendant, submitted that the statement in the invoice cannot be misunderstood; it was clearly indicating that the payment claim incorporated the provisions of the statute and that therefore the recipient would be alerted to the consequences of ignoring the claim.

8I accept Mr Bromley’s submission, I consider that the Act has been complied with and that the payment claim “in a reasonable way”, to use the words of Palmer J adopted by Vickery J in Hickory, complies with section 14(2)(e) by stating that the claim is made under the Act. I do not consider that there is a serious question to be tried and the plaintiff’s claim for an interlocutory injunction must fail.

9The plaintiff has submitted material in support of an argument that the balance of convenience would favour the grant of an injunction, if the Court were otherwise satisfied that there was a serious question to be tried. The plaintiff presently occupies leased premises. The term of the lease was twelve months, expiring 28 February 2013. The plaintiff still occupies the premises and must shortly vacate. It wishes to purchase a property from which to conduct its business and to arrange finance to bid at an auction which will be held in about three weeks. The material in support of the application suggests that, if a judgment were entered for the adjudicated amount of $50,909.35, that the financial consequences to the plaintiff would be disastrous and it may cease to operate, resulting in the loss of employment for its 34 employees. It is not, however, clear why it is said that this would be likely to happen.

10The adjudication is based on a claim for work that the defendant says it performed at the plaintiff’s request between December 2012 and June 2013. Four invoices dated between February 2013 remained unpaid. The payment claim dated 18 July 2013 was ignored. A subsequent letter dated 14 August 2013 was also ignored.

11In the circumstances, even if I were satisfied that there was a serious question to be tried, the evidence is insufficient to establish that the balance of convenience favours the grant of injunction, or that in the proper exercise of the Court’s discretion, it would be appropriate to grant such relief.

12I therefore make the following orders:

a.The plaintiff’s summons filed 13 September 2013 is dismissed.

b.The plaintiff pay the defendant’s cost of the summons and of the hearing today to be determined by the Costs Court in default of agreement.

c.By 17 October 2013, the plaintiff must advise the Directions Group in writing as to whether it opposes the Originating Motion filed 13 September 2013 being struck out with no order as to costs, or alternatively, whether the parties require directions setting a trial date for the Originating Motion and for a pre-trial timetable.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 17 September 2013 and settled on 18 September 2013.

Dated: 18 September 2013

Catherine Kusiak

Associate to His Honour Judge Anderson