South City Plaster Pty Ltd v Modscape Pty Ltd
[2018] VCC 1576
•3 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-02300
| SOUTH CITY PLASTER PTY LTD | Plaintiff |
| v | |
| MODSCAPE PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 15 August 2018 | |
DATE OF DECISION: | 3 October 2018 | |
CASE MAY BE CITED AS: | South City Plaster Pty Ltd v Modscape Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1576 | |
REASONS FOR JUDGMENT
---
Subject:Claim under Building and Construction Industry Security of Payment Act (Vic) 2002
Catchwords: Whether Building and Construction Industry Security of Payment Act (Vic) 2002 applies to prefabrication work carried out in Victoria for erection in Tasmania; nature of proceeding, whether to be treated as application for summary judgment under Civil Procedure Act 2010 and Order 2; whether amount sought constitutes a single payment claim; whether more than one payment claim made in respect of same reference date; Building and Construction Industry Security of Payment Act (Vic) 2002 ss 7(4), 14, 15, 16, 17
Legislation Cited: Building and Construction Industry Security of Payment Act (Vic) 2002; Building and Construction Industry Security of Payment Act (Tas) 2009; Constitution Act 1975; Australia Act 1986; Civil Procedure Act 2010; Evidence Act 2008
Cases Cited:Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor [2009] VSC 156; Rokez Constructions Pty Ltd v CXM Building Constructions Pty Ltd [2013] VCC 1229; Façade Treatment Engineering Pty Ltd v Brookfield Multiplex Construction Pty Ltd (2016) 337 ALR 452; Fulconstruction v ABP Consultants Pty Ltd [2016] VCC 1732; Baron Forge Contractors Pty Ltd v Vaughan Constructions Pty Ltd [2015] VCC 1424; AC Hall Airconditioning Pty Ltd v Victorian Education Foundation Limited [2010] VCC 1473; 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674; Celsius Fire Services Pty Ltd v CBC Facilities Maintenance Pty Ltd [2015] VCC 31; Hawkins Construction v Mac’s Industrial Pipework [2001] NSWSC 815; Wetlock Industries Pty Ltd v Body Corporate for City Link [2016] QMC 9; Pyneboard Pty Ltd & Ors v Trade Practices Commission & Anor (1982) 39 ALR 565; Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266; Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42; Commercial Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd & Anor [2015] VSC 426; Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous Engineering Pty Ltd & Ors [2015] QSC 307; Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165; Matrix Projects (Qld) Pty Ltd v Luscombe [2013] QSC 4; Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; Kay’s Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; Goodwin v Jorgensen; Goodwin v Cordell (1973) 128 CLR 374; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Indrisie v General Credits Limited [1985] VR 251; British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 136
Texts Cited:Pearce and Geddes, Statutory Interpretation in Australia (8th ed)
Judgment:Order 1: Within 14 days of this day, the parties must bring in short minutes to give effect to these reasons.
Order 2: Costs reserved.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ritchie | Lovegrove & Cotton |
| For the Defendant | Dr K. Weston-Scheuber | Arnold Bloch Leibler |
HIS HONOUR:
Background
1 On 20 September 2015, Modscape Pty Ltd (“Modscape”), the defendant in this proceeding, was engaged by Fairbrother Pty Ltd to supply and install 64 fabricated modules for use in a construction project known as “Royal Hobart Hospital Temporary Decant Facility”. These modules were to be used as part of a temporary complex in the hospital’s carpark (Affidavit of Robert Barker, affirmed 29 June 2018, paragraph 4).
2 Ms Kennedy of Modscape sent an email to Mr Zhang of South City Plaster Pty Ltd (“South City Plaster”), the plaintiff in this proceeding. She enclosed a package of architectural drawings, noting “At this stage we do not have a complete package of drawings for you to quote this project completely”. She said, “Can you please begin take-offs so you are able to provide a quote for the following (excluding corridors) …”. The email continued:
“As a separate quote, please allow for:
·All corridor walls and plaster
·Travel allowances to complete corridor works”
3 On 12 October 2015, Ms Kennedy sent a further email to Mr Zhang, stating:
“Due to Royal Hobart Hospital being designed as we build, we have had an internal meeting and feel the nest [scil best] way to approach the stud and plaster package is to have you quote it as the drawings are issued”.
4 She attached further drawings and remarked, “I think it would be best if you were to come down when you can …”.
5 Apparently, following a site meeting, Ms Kennedy sent a further email on 22 October 2015, asking for “a quote for level 2 ceiling and plaster to all columns as per the details attached”. (Barker affidavit, Ibid, paragraph 7, exhibit RB-1)
6 Mr Zhang of South City Plaster despatched quotation number Q7240 dated 25 November 2015, quoting for a range of work, $546,337 inclusive of GST. Note 7 in the quotation stated, “Price excludes to do job at Hobart”. Note 11 stated, “Price for plaster job only at Brooklyn”.
7 Modscape issued its purchase order RHH/2000.4 dated 26 November 2015, which was reflective of South City Plaster’s quotation and included the notes quoted above. The reference to “Brooklyn” was to Modscape’s factory at 430 Francis Street, Brooklyn, Victoria.
8 As construction on this project commenced before the completion of design, according to Mr Zhang “Each time part of the work was ready for construction, Modscape would ask SCP [viz South City Plaster] to give a quotation for a particular scope of work” (Affidavit of Liling Zhang, affirmed 25 May 2018, paragraph 11). Mr Zhang continued, “If Modscape agreed with the quoted scope and price it then issued a purchase order accepting the quotation”. (Ibid, paragraph 13)
9 On 9 December 2015, Mr Droukman, who was Modscape’s estimator (Ibid, paragraph 18), stated:
“We have [a] situation with the plasterboard to the wards.
The product will need to be ‘Powerscape Aqua-Tough Panel’:
·Please sheet all wards which have not yet been sheeted in this product;
·Quadrant 1 has already been sheeted, please stick this product over existing plasterboard;
·If a wall has a doorway, please remove existing plasterboard and apply this product;
Please proceed immediately and we can discuss cost after.” (Zhang affidavit, Ibid, exhibit LZ-4)
10 Mr Zhang responded the same day with a quotation addressed to Ms Kennedy of Modscape, quoting $297,448.80 inclusive of GST for “Plasterboard change”. The quotation was number 07263 and included as note 3 “All Plasterwork at Brooklyn only”. (Ibid, exhibit LZ-5)
11 An acceptance of this quotation for the use of Aqua-Tough Panels by way of purchase order dated 10 December 2015 was eventually despatched to Mr Zhang by Ms Kennedy on 22 February 2016. The order did not have the extensive descriptors responding to South City Plaster’s quotation provisions as in previous purchase orders. It was headed “Plasterboard Change”, and the only descriptor was “Quote # Q7263”. It quoted a price as per the quotation of $297,448.80. (Ibid, exhibit LZ-8)
12 According to Mr Zhang, South City Plaster carried out this work at “Modscape’s yard in Brooklyn, Victoria” with the work completed in January 2016. (Zhang affidavit, Ibid, paragraphs 22-24)
13 On 16 February 2016, South City Plaster issued quotation number Q7518 addressed to Ms Kennedy and headed “To Supply and fix plaster to Corridor – Royal Hobart Hospital”. The price inclusive of GST for $408,944.80. It included some four notes:
“1. Price includes install plaster and suspended ceiling in corridor.
2. Price includes travel and Accommodation.
3. Price includes plasterwork at Corridor only.
4. Price includes finish plaster work ready for painting.”
14 This quotation was accepted by Modscape purchase order number RHH/2000.10 dated 17 February 2016, which included the notes or descriptors quoted above and accepted the quoted price. (Zhang affidavit, Ibid, exhibits LZ-13 and LZ-14)
15 By email dated 25 February 2016, Ms Kishere, South City Plaster’s office manager/bookkeeper, ordered invoices J2726V1 and J2726C. These invoices were respectively for $297,448.80 and $33,300.96. Both were said to relate to “Internal Plaster Royal Hobart” and asserted the work was “100% complete”. The invoices included the statement at the foot of each “This claim is made under the Securities (sic) of Payment Act”.
16 Also included was a document styled “Progress Claim 25th monthly” relative to “J2726 – Royal Hobart Hospital Internal Plaster”. It quoted a total contract amount, exclusive of GST, of $767,078 and a claim of $300,681.60 plus GST of $30,068.16. This yields a total claim of $330,749.76. Although the line “Total this claim including GST” was left blank, the total figure flows as a matter of arithmetic, however. (Zhang affidavit, Ibid, exhibit LZ-9)
17 Modscape did not serve what is described as a “payment schedule” in accordance with the Building and Construction Industry Security of Payment Act 2002 in response to the invoices and claims. (Zhang affidavit, Ibid, paragraph 28) Modscape paid South City Plaster $100,000 in response to invoice J2726V1, but made no other payment. (Ibid, paragraphs 29-30)
18 By an Amended Originating Motion filed 31 July 2018 by leave of the Court, South City Plaster claims $230,749.70 pursuant to s16(2)(a) of the Building and Construction Industry Security of Payment Act. By an Amended Summons of the same date filed by leave of the court, South City Plaster sought authority to commence the proceeding by Originating Motion, and judgment for the amount claimed.
19 These matters came on for hearing before me on 9 August 2018.
20 Proceeding number CI-17-01751 comprises claims by South City Plaster against Modscape “for debts owed by Modscape under a large number of different subcontracts including [the matters the subject of this proceeding]”. (Zhang affidavit, Ibid, paragraph 16)
Plaintiff’s contentions
21 Mr Ritchie, counsel for South City Plaster, contended that this proceeding was properly brought under the Building and Construction Industry Security of Payment Act with respect to “a construction contract between [South City Plaster] and Modscape … to which the Act applied”.
22 According to Mr Ritchie, the service of the two invoices under cover of the email constituted a payment claim by South City Plaster and Modscape under s14 of the Act. Since Modscape failed to deliver a payment schedule under s15(1) by operation of s15(4) of the Act, “Modscape became liable on or about 30 March 2016 to pay $330,749.76” to South City Plaster. Only $100,000 had been paid and, accordingly, South City Plaster was entitled pursuant to s16(2) of the Act to recover $230,749.76, he said.
23 According to Mr Ritchie, there was no dispute as to the fact of the service of the invoices. The lack of any payment schedule in response from Modscape or that only $100,000 of the amount claimed had been paid.
24 Mr Ritchie said that the contract made on 26 November 2015 comprised Modscape’s acceptance of South City Plaster’s quotation by issuing purchase order RHH/2000.4. This contract, he said, “called for [South City Plaster] to carry out plastering to the suspended ceilings and internal walls of the wardroom modules that were being constructed by Modscape in its Brooklyn yard with a price of $546,337”. This, he submitted, was a `construction contract’ within the meaning of s4 of the Act.
25 The contract was, he said, the subject of an agreed variation to upgrade the wall plaster to “Aqua-Tough Panel”, the quoted price being $297,448.80. This variation was constituted, he said, by Mr Droukman’s email of 9 December 2015, South City Plaster’s quotation number Q7263, and Modscape’s purchase order number RHH/2000.7 This variation was claimable under the Act as being within the class of variations dealt with in either sub-ss(2) or (3) of s10A. He said there was no method of resolving disputes under the contract, including the disputes referred to in s10A(3)(c) of the Act. Therefore, the varied amount “could be taken into account in determining the amount of a progress payment to which [South City Plaster] was entitled under the contract”. The varied contract price was $760,078 exclusive of GST, he said, or $843,785.80 inclusive of that impost.
26 As to reference dates, he said work was first carried out under the contract on 26 November 2015, according to paragraph 20 of Mr Zhang’s affidavit. The reference dates were therefore, he said:
(a) 24 December 2015;
(b) 27 January 2016;
(c) 24 February 2016.
27 By virtue of s9(1), South City Plaster, he said, was entitled to a progress payment “on and from each of these reference dates”. The claim was served on 25 February 2016. Accordingly, he submitted that “24 February 2016 was the applicable reference date”.
28 This claim, he said, was a single claim. First, because it was served under cover of a single email. Secondly, because it was served under cover of, or accompanied by, a “Progress Claim 25th monthly”. In any event, he said it was:
“established that multiple invoices delivered at the same time in respect of the same construction contract may comprise one payment claim and will not offend the prohibition on multiple claims in respect of the same reference date in s14(8) of the Act.”
29 He referred to Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor [2009] VSC 156 at [153].
30 Mr Ritchie conceded that by virtue of s14(2)(e), a claim to be effective for the purposes of the statute “must… state that it is made under the Act” (viz the Building and Construction Industry Security of Payment Act).
31 It was sufficient for compliance with this requirement, according to Mr Ritchie, that the claim “purport in a reasonable way” to state that it is made under the Act. He referred to Rokez Constructions Pty Ltd v CXM Building Constructions Pty Ltd [2013] VCC 1229 [3] and [8].
32 The endorsement on these invoices quoted above complied with the requirements, according to Mr Ritchie, “in a reasonable way”. He said “it was plain from the context in which the payment claim was delivered that the endorsement sought to engage the operation of the Act”. He noted that the claim was only for work done by South City Brooklyn Victoria, and that the work was the subject of a contract. The work under which was to be carried out in Brooklyn, Victoria.
33 Mr Ritchie contended that it was a term of the contract that payment would be made within 30 days at the end of the month in which the claim was delivered. He referred to the statement “Modscape payment terms: 30 days end of month” contained in the purchase order RHH/2000.4. Therefore, payment was due 30 March 2016 and interest was payable on the unpaid balance from 30 March 2018 at the rates provided for in s2 of the Penalty Interest Rates Act 1983. He referred to s12(2) of the Building and Construction Industry Security of Payment Act.
Defendant’s contentions
34 Dr Weston-Scheuber, counsel for the defendant, submitted that this application should be dismissed. She said it was a “complex factual matter and cannot be properly determined on a summary judgment application”. In any event, she said no valid payment claim had been issued, as required by s16(2)(a)(i) of the Act, and, more fundamentally, she said the Building and Construction Industry Security of Payment Act did:
“not apply to the construction contract to the extent that it deals with construction work carried out outside Victoria and related goods and services supplied in respect of construction work carried out outside Victoria”.
35 She said the following issues arose:
(a) the appropriate test to apply in the application;
(b) what constitutes the construction contract between the parties for the purposes of the Act;
(c) whether the payment claim meets the requirements of s14 due to its failure to refer to the Act;
(d) whether multiple payment claims were served for the same reference date in contravention of s14(8);
(e) whether a valid reference date exists for the payment claim;
(f) whether the Act does not apply because the construction contract deals with construction work carried out outside Victoria and related goods and services supplied in respect of construction work carried out outside Victoria; and
(g) whether the purported “payment claim” was referable (on the applicant’s case) to two separate contracts and therefore invalid.
36 She submitted that an application such as this was “effectively an application for summary judgment”. She said it had been described as such in cases such as Façade Treatment Engineering Pty Ltd v Brookfield Multiplex Construction Pty Ltd (2016) 337 ALR 452 at [56], [59], [111], [112], [128], [138] and Fulconstruction v ABP Consultants Pty Ltd [2016] VCC 1732 at [3]-[11].
37 The test for whether summary judgment should be granted to a plaintiff was, she said, whether the respondent or defendant had a real, as opposed to a fanciful, prospect of success. She referred to Baron Forge Contractors Pty Ltd v Vaughan Constructions Pty Ltd [2015] VCC 1424 and AC Hall Airconditioning Pty Ltd v Victorian Education Foundation Limited [2010] VCC 1473. She noted the contrary decision of his Honour Judge Woodward in 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674.
38 According to Dr Weston-Scheuber, in the present case there was a conflict between the parties as to which construction contract governed the relationship between the parties. This could only be resolved by viva voce evidence and, therefore, it was unsuitable for determination by summary judgment.
39 She said that with the larger dispute between the parties already the subject of a pending proceeding in the court, “A dismissal of the application is without prejudice to the applicant’s rights in the substantive proceeding to pursue its claim for the outstanding amounts”.
40 According to Dr Weston-Scheuber, the construction contract between the parties was “a single contract entered in [scil into] around October 2015 constituted by the documents [referred to by defendant’s deponent Robert Barker at paragraph 7 of his affidavit affirmed 29 June 2018, which referred to the emails dated 22 September 2015, 12 October 2015 and 22 October 2015]”. She said:
“While separate purchase orders and invoices were issued for components of the work, all work carried out by South City Plaster in respect of the RHH project was carried out pursuant to the RHH agreement”.
41 She noted the requirements of s14(2) of the Act that a claim for the purposes of the Act must “`state that it is made under this Act’”. She said the relevant invoices, as narrated above, did not identify the Act to which they were allegedly pursuant by year or jurisdiction. The agreement between the parties was, she said, performed in both Victoria and Tasmania and, therefore, the reference to the “Securities of Payment Act” was ambiguous and non-compliant.
42 She noted that, according to Mr Barker’s 29 June 2018 affidavit at paragraphs 22-27, South City Plaster had, in an adjudication under the corresponding Tasmanian Act, contended that the “Securities of Payment Act” referred on a different invoice relative to the Royal Hobart Hospital project referred to the Tasmanian statute. She said these payments constituted an election on the part of South City Plaster that the reference to the “Securities of Payment Act” was a reference to the Building and Construction Industry Security of Payment Act (2009) of the State of Tasmania.
43 She said that other decisions where inexact expressions have been found adequate in the circumstances were distinguishable. In Celsius Fire Services Pty Ltd v CBC Facilities Maintenance Pty Ltd [2015] VCC 31, a decision of his Honour Judge Anderson, the reference was found adequate where the payment claim referred to the Victorian, New South Wales and Queensland Acts, that the work was all carried out in Victoria, and there was a choice of law provision favouring the laws of Victoria. In Hawkins Construction v Mac’s Industrial Pipework [2001] NSWSC 815, the only reference was an abbreviated form of reference to the New South Wales legislation “ind” instead of “industry”. Again, she said there was no uncertainty. In Wetlock Industries Pty Ltd v Body Corporate for City Link [2016] QMC 9, the payment claim incorrectly referred to the New South Wales Act rather than the Queensland Act, but there was no ambiguity.
44 Dr Weston-Scheuber referred to Pyneboard Pty Ltd & Ors v Trade Practices Commission & Anor (1982) 39 ALR 565, 571 where it was said that latent ambiguities would not invalidate a notice if they were brought forth only by an elaborate process of passing an analysis where, as a matter of common sense, the notice was reasonable clear. She noted the statement in Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266, that the notice must be “clear on the face of the document that it purports to be a payment claim under the Act. The test is an objective one”.
45 She said the jurisdictional requirements needed to be met, failing which a claim based on the Act would fail. She referred to Jemzone Pty Ltd v Trytan Pty Ltd (2002) 42 ACSR 42 [46] per Austin J.
46 Given the interstate elements of this transaction, she said “it would not be clear to a reasonable observer in the recipient’s position which Act applied, and therefore which jurisdiction’s requirements it was required to comply with”.
47 Dr Weston-Scheuber said that South City Plaster had “significantly changed the nature of its assertions as to the contractual arrangements between the parties in order to fit its claim within the scope of the Act”. She noted that Mr Zhang’s affidavit of 25 May 2018 at paragraphs 15-30 was that invoice J2726V1 “related to a stand-alone contract constituted by Quotation Q7263”. Invoice J2726C was not referred to in this, Mr Zhang’s, first affidavit at all. She said that “[Modscape’s] position is, and has always been, that there was a single contract for South City Plaster to perform the plasterworks for the Royal Hobart Hospital project” and that the various quotations were given and accepted “in the context of this contract”.
48 She noted that s14(8) of the Act prohibits the service of multiple payment claims for the same reference date. She referred to the judgment of Vickery J in Commercial Industrial Construction Group Pty Ltd v King Construction Group Pty Ltd & Anor [2015] VSC 426. She said that South City Plaster had served multiple payment claims in relation to the Royal Hobart Hospital agreement with the same reference date of 25 February 2016. She referred to Mr Barker’s affidavit, 29 June 2018 at paragraphs 33-35. This, she said, was a violation of s14(8) of the Act and those multiple claims cannot be the basis for a judgment to be entered.
49 Dr Weston-Scheuber said even if South City Plaster’s view were adopted, no reference date had arisen in relation to the payment claim for the two invoices. She said that whilst in his second affidavit (27 July 2018), Mr Zhang said that all work had been completed in January, this was inconsistent with what was said in the Further Amended Statement of Claim at paragraphs 39 and 67, referring to work being carried out in February 2016. She referred to Mr Barker’s affidavit of 29 June 2018 at paragraphs 46-47 which indicated work being carried out as late as March 2016.
50 By virtue of s9(2)(d), the reference date is the day after construction work was last carried out under the contract. Since work was still being carried out, no reference date had arisen by 25 February. A payment claim that does not have a valid reference date is not a valid payment claim. She referred to Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340 [2], [61].
51 She noted that invoice J2726V1 provided for installation of impact resistant plasterboard. This plasterboard was to be installed in the corridors of the modules as well as in the wardrooms. She referred to Mr Barker’s affidavit of 29 June 2018 at paragraph 17.
52 She said, despite South City Plaster’s contention that the two invoices did not include plasterwork to the walls of the corridors, photographs taken and exhibited to Mr Barker’s second affidavit (7 August 2018) showed that South City Plaster “commenced carrying out plasterwork in the corridors prior to the modules being shipped to Brooklyn” [presumably this should read “from Brooklyn”].
53 She said that since the plasterwork referred to in the two invoices was not completed before the modules were shipped, South City Plaster had to carry out plasterwork in Tasmania, which was not completed until March. A claim on a one-off basis may only be made after the work is last carried out. (See s9(2)(c))
54 More fundamentally, Dr Weston-Scheuber submitted the Victorian Act does not apply to this work at all. She referred to s7(4) of the Act, providing that its terms cannot apply to a construction contract to the extent that it “deals with” construction work carried out outside Victoria and related goods and services supplied in respect of construction work carried out outside Victoria.
55 She referred to the definition of construction work in s5(1) and the definition of related goods and services in s6. She said:
“The Aquachek plasterboard that was the subject of Invoice J2726V1 constituted materials to form part of the structure that Modscape was engaged to construct at the Royal Hobart Hospital site”.
56 All relevant parts of the definition of construction work which might be engaged here refer to works, building structures and fittings “forming, or to form, part of land”.
57 She referred to the judgment of Philip McMurdo J in Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous Engineering Pty Ltd & Ors [2015] QSC 307. She said that his Honour concluded that preparatory work to be within the definition “must form an integral part of such construction work, be preparatory to it or performed for the completion of that construction work”.
58 In the present case, she said the work carried out does not have any connection with building work forming part of land in Victoria and therefore lacks the necessary connection to land required by the Act. The agreement in question, she said, deals with construction work carried out in Tasmania and related goods supplied in respect of that construction work carried out in Tasmania. The upgraded plasterboard “was to be incorporated into a structure forming part of Tasmanian land”. Therefore, a claim of this type could only be brought under the Tasmanian statute, as had another claim by South City Plaster. She referred to paragraph 22 of Mr Barker’s principal affidavit.
59 Dr Weston-Scheuber referred to Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165. She said that whilst some construction work was carried out and goods and services were provided in Victoria, the contract was still one “dealing with” construction work outside Victoria. Therefore, the Victorian statute did not apply. The defendant, she said, denied South City Plaster’s contention that the plasterwork for the corridors was part of a separate purchase order, RHH/2000.10. She said this purchase order related only to plasterwork to the suspended ceilings of the modules “which by its nature needed to be carried out on site”.
60 These arguments, she submitted, applied even if South City Plaster’s contention that these invoices related to a separate contract were accepted.
61 Finally, she said a payment claim must be made under a single construction contract. She referred to Matrix Projects (Qld) Pty Ltd v Luscombe [2013] QSC 4 [20]. She said that South City Plaster’s Amended Statement of Claim proceeded on the basis that the two invoices were rendered pursuant to separate contracts. This, in itself, would render the payment claim invalid.
Conclusions
Can the Building and Construction Industry Security of Payment Act 2002 apply to this claim?
62 By virtue of s16 of the Constitution Act 1975, the Victorian Parliament has power “to make laws in and for Victoria in all cases whatsoever”. That power includes “full power to make laws for the peace, order and good government of [Victoria] that have extra-territorial operation.” (Australia Act 1986 s2(1))
63 In the present case, the parties are agreed that they were parties to a contract or contracts at least partially performed in Victoria. That being the case, the Victorian Parliament had and has power to make laws regulating that contract or those contracts in their entirety, subject to the rules of conflict of laws. The question of the application of the Building and Construction Industry Security of Payment Act 2002 to this dispute therefore is one of statutory construction, not of territorial jurisdiction.
64 Many – perhaps most – State laws speak in general terms, and as a matter of pure grammar purport to regulate events and things wherever they may be or have occurred. This generality, apart from any constitutional territorial restriction, is subject to a general presumption that Victorian legislation purports to regulate events and things in Victoria and not elsewhere: Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363, per O’Connor J; Pearce and Geddes, Statutory Interpretation in Australia (8th ed), paragraph 5.9.
65 This common law presumption finds some statutory expression in the Interpretation of Legislation Act 1984, s48, providing that in Victorian statute:
“a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.”
66 These presumptions and constructional rules, however, are not given an unwavering and reductionist effect. In Kay’s Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124, the High Court had to determine inter alia which hire-purchase legislation applied to a trans-jurisdictional hiring arrangement. The hirers carried on business and resided in New South Wales, and the equipment the subject of the hiring arrangement was located in New South Wales. The hirers executed the relevant documents in New South Wales. The leasing company executed the arrangements in Victoria. If the New South Wales legislation applied, the hiring arrangements would have been void. The High Court concluded upon these facts that the hiring arrangements were made in Victoria and were subject to the Victorian statute and not the New South Wales statute. They were therefore enforceable. The court did not take the reductionist view that since the goods in question were located outside Victoria, viz in New South Wales, the Victorian statute could not apply to the formation of the contract.
67 In Goodwin v Jorgensen; Goodwin v Cordell (1973) 128 CLR 374, a decade later, the issue of which hire-purchase statute applied came before the High Court again. Section 41 of the New South Wales Hire-Purchase Act 1960 made it an offence for the hirer of goods under a hire-purchase agreement to fail to give the owner, when required, a statement in writing disclosing the location of the goods. The hirers were convicted of an offence against this section in circumstances where the hire-purchase agreement was entered into, not in New South Wales, but in the Australian Capital Territory. The hirers were convicted of an offence against s41 or s47 of the New South Wales Act. The New South Wales Court of Appeal held that s47 on its proper construction applied only to hire-purchase agreements made in New South Wales (Goodwin v Cordell [1972] 2 NSWLR 310). The High Court (McTiernan J dissenting) reversed that determination and upheld the conviction entered by the magistrate. Barwick CJ said:
“There can be no doubt in my mind that provisions in terms of ss. 41 and 47 expressly made applicable to hire-purchase agreements wherever made would be within the competence of the legislature of New South Wales. The presence of the goods and of the hirer in New South Wales is ample to attract the jurisdiction of the State territorially limited as it is in matters of the kind with which the sections are dealing.” ((1973) 128 CLR 374, 375–6)
68 His Honour continued on the latter page:
“There being no need to import any limitation into the application of ‘hire-purchase agreement’ according to s. 1(5) of the Act or specifically into ss. 41 or 47 in order to sustain its validity, there is in my opinion no other basis upon which any limitation can be made. It is nothing to the point, in my opinion, that some territorial limitation must be made in relation to other sections of the Act because of the specific nature of the provisions there enacted. Nor in my opinion is there anything incongruous in the State making provisions such as are found in ss. 41 and 47 for the protection of the owner of those goods in relation to goods or persons within the State.”
69 Menzies J, with whom the Chief Justice concurred, said:
“It is established that the provisions of the Act relating to the formation and contents of hire-purchase agreements refer only to hire-purchase agreements made in New South Wales [he referred to Fletcher’s case]. No doubt, too, other provisions of the Act may be similarly limited in their operation. The limitation in each case, however, springs from the terms and the subject matter of each of the various provisions itself, not from any over-riding limitation confining the operation of the Act as a whole to hire-purchase agreements made in New South Wales.” ((1973) 128 CLR 374)
70 Turning, then, to the Building and Construction Industry Security of Payment Act 2002, s5(1) provides the definition of construction work, which is of crucial significance. The Act applies to construction contracts (s7(1)), defined in s4 as meaning contracts “under which one party undertakes to carry out construction work, or to supply related goods and services, for another party”. Section 5(1) states:
“Definition of construction work
(1) In this Act, “construction work” means any of the following work—
(a)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);
(b)the construction, alteration, repair, restoration, maintenance, extension, demolition or dismantling of any works forming, or to form, part of land, including walls, roadworks, power-lines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipelines, reservoirs, water mains, wells, sewers, industrial plant and installations for the purposes of land drainage or coast protection;
(c)the installation in any building, structure or works of fittings forming, or to form, part of land, including heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply, fire protection, security and communications systems;
(d)the external or internal cleaning of buildings, structures or works, so far as it is carried out in the course of their construction, alteration, repair, restoration, maintenance or extension;
(e)any operation which forms an integral part of, or is preparatory to or is for rendering complete, work of the kind referred to in paragraph (a), (b) or (c), including—
(i) site clearance, earth-moving, excavation, tunnelling and boring; and
(ii) the laying of foundations; and
(iii) the erection, maintenance or dismantling of scaffolding; and
(iv) the prefabrication of components to form part of any building, structure or works, whether carried out on-site or off-site; and
(v) site restoration, landscaping and the provision of roadways and other access works;
(f)the painting or decorating of the internal or external surfaces of any building, structure or works;
(g)any other work of a kind prescribed for the purposes of this subsection.”
71 Also relevant is the definition of “related goods and services” appearing in s6(1) of the statute, which provides:
“Definition of related goods and services
(1) In this Act, “related goods and services”, in relation to construction work, means any of the following goods and services—
(a)goods of the following kind—
(i) materials and components to form part of any building, structure or work arising from construction work;
(ii) plant or materials (whether supplied by sale, hire or otherwise) for use in connection with the carrying out of construction work;
(b)services of the following kind—
(i) the provision of labour to carry out construction work;
(ii) architectural, design, surveying or quantity surveying services in relation to construction work;
(iii) building, engineering, interior or exterior decoration or landscape advisory or technical services in relation to construction work;
(c)goods and services of a kind prescribed for the purposes of this subsection.”
72 In Wiggins Island Coal Export Terminal Pty Ltd v Monadelphous Engineering Pty Ltd [2015] QSC 307, Philip McMurdo J considered the application of the corresponding Queensland Act, the Building and Construction Industry Payments Act 2004, in a cross-border scenario. An adjudicator, in accordance with the terms of the Queensland statute, had made a determination in favour of a contractor for work relative to the construction of a coal export terminal near Gladstone. The work entailed preliminary fabrication of a structure in Malaysia, followed by its erection and installation as a jetty and wharf at the location near Gladstone. The determination of the adjudicator pertained to work done in Malaysia.
73 The proprietor sought to have this determination set aside upon the basis that it pertained to “construction work carried out outside Queensland or related goods and services supplied for construction work carried out outside Queensland”, as to which the Act, by virtue of s3(4), has no application. This subsection is the equivalent of s7(4) of the Victorian Act. His Honour rejected this contention. He said:
“The work of the fabrication of this equipment was carried out outside Queensland. But that work was construction work only because it was an integral part of construction work undertaken inside Queensland. In my view, that fabrication could not be relevantly characterised both as construction work carried out outside Queensland and an integral part of construction work carried out within Queensland.” ([2015] QSC 307, paragraph [40])
74 Dr Weston-Scheuber contended, on the basis of his Honour’s analysis, that its application to the present set of facts would have Victoria as the equivalent of Malaysia, and Tasmania as the equivalent of Queensland. The result, therefore, is that if any “security of payment” legislation were to be relied on by South City Plaster, it would have to be the Tasmanian and not the Victorian.
75 In Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165, Ball J of the Supreme Court of New South Wales considered the operation of the New South Wales statute. This dispute pertained to a contract for the carrying out of works at a Royal Australian Navy establishment in the Federal enclave of Jervis Bay. The plaintiff, Olympia, sought an adjudication pursuant to the New South Wales Act. Olympia sought orders from the Supreme Court determining that the adjudicator under the New South Wales Act had jurisdiction. His Honour concluded that the adjudicator under the New South Wales Act did not have jurisdiction to determine the matter. He said:
“In my opinion, the contract between Olympia and Hansen Yuncken dealt with construction work outside New South Wales or at least with related goods and services supplied in respect of that construction work. Under the contract, Olympia was to refurbish a building in the Jervis Bay Territory. Necessarily, the work had to be performed in that territory. The fact that goods were sourced in New South Wales and work was carried out in New South Wales in connection with the contract does not mean that the contract between Olympia and Hansen Yuncken dealt with construction work in New South Wales. At most, all that could be said was that the contract for the construction work dealt with related goods and services which were supplied in New South Wales because the contract left it open – or, indeed, given the location of the Jervis Bay Territory, contemplated – that goods and services of that description would be supplied. The goods and services actually supplied in New South Wales were related goods and services to construction work carried on in the Jervis Bay Territory because the goods and services consisted of materials and components which formed part of the work on the Geelong building or the provision of labour in connection with the fabrication of those materials and components. The SOP Act does not apply to those related goods and services by reason of s 7(4)(b) of the Act. ([2011] NSWSC 165, [27])
76 Dr Weston-Scheuber contended that his Honour’s analysis should be applied here in support of her contentions, upon the basis that the Jervis Bay Territory was the equivalent of Tasmania, and New South Wales was the equivalent of Victoria.
77 Mr Ritchie contended that these cases were distinguishable. In the case of both, he said, there was a contract for the carrying out of construction work and the supply of related goods and services in which work was to be carried out in two jurisdictions. In the Wiggins Island case the preparatory work was to be done in Malaysia, with the contract requiring the erection and installation of the fabricated structures in Queensland. Likewise, the contract in the Olympia Group case, he said, entailed the carrying out of preliminary works in New South Wales and the erection and installation of those works in the Jervis Bay Territory. Here, he said, on the proper construction of the evidence and in accordance with the factual case advanced by South City Plaster, the entire subject matter of the work was to be carried out in Victoria. He relied upon the plaintiff’s affidavits as a basis for a finding that this was in fact what occurred. The necessary cross-border element did not arise in the same way as in the authorities relied on by Dr Weston-Scheuber.
78 An initial factual dispute arises as to whether Mr Ritchie’s contentions on this point are made good as a matter of fact. Mr Zhang deposed that South City Plaster did the work the subject of this claim in its yard at Brooklyn, Victoria (Zhang affidavit, affirmed 25 May 2018, paragraph 22). Mr Barker, Modscape’s project manager, affirmed however that the relevant modules were only partly constructed in Brooklyn and were sent to a holding yard in Hobart, with the bulk of the plasterwork occurring in Tasmania. He said that as to the variation involving the use of “Aquachek” plasterboard, “a significant amount of the installation ... occurred in Tasmania.” (Barker affidavit, affirmed 29 June 2018, paragraphs 52–54.) In a reply affidavit affirmed 27 July 2018, Mr Zhang denied what Mr Barker said on these matters. He conceded that work was carried out in a holding yard at Macquarie Point in Tasmania, but said that this:
“had nothing to do with the prefabrication of the modules. This work was work required to repair water damage to the plasterwork for the modules that had occurred in the Modscape Brooklyn yard as a consequence of Modscape failing to adequately protect the modules from rain, as well as during the transportation of the modules from Melbourne to Hobart. As a consequence of the water damage the modules became infested with mould. The plaster repair work carried out to deal with the water damage and mould issue was not carried out by SCP. It was carried out by Modscape using labourers hired from SCP working at the direction of Modscape under a labour hire arrangement.” (Zhang affidavit, 27 July 2018, paragraph 46.)
79 He said unpaid amounts for this labour-hire arrangement were part of South City Plaster’s claim in Proceeding CI-17-01751 (ibid, paragraph 48).
80 Neither side sought to cross-examine the other party’s deponent. Mr Barker affirmed a final affidavit on 7 August 2018 in which he denied the “labour hire agreement” alleged (see paragraphs 34–35). I am left to determine which is the more reliable account, without the benefit of cross-examination. In the circumstances, I accept the account given by Mr Zhang, which appears consistent with the terms of the relevant purchase orders, rather than Mr Barker’s account. I note that the possibility of rain damage in the circumstances described has a plausibility to it that shipment of prefabricated modules in a half-completed state does not.
81 In support of his contention that part of the work the subject of the present proceeding’s claim was carried out outside Victoria and in Tasmania, Mr Barker refers to work carried out to the corridors. This work, as a matter of logical necessity, was carried out in Hobart. The corridors could only be constructed once the modules were put in place in the car park of the Royal Hobart Hospital. Nevertheless, I accept the evidence of Mr Zhang, in his affidavit affirmed 27 July 2018, that this work is the subject of a separate contract in response to a quotation submitted by South City Plaster to Modscape in February 2016. (Q7518, exhibits LZ-13 and LZ-14) The purchase order states, “Price includes travel and accommodation”, which is consistent with an intention that this work be carried out in Tasmania rather than in Victoria.
82 My preference for the account on these matters of Mr Zhang over the one given by Mr Barker leads me to the conclusion that the factual premise of Mr Ritchie’s contention that the matters the subject of this claim represented work done in practical geographical terms in Brooklyn, Victoria, and not in Tasmania, is correct. To put it another way, the quotations and purchase orders did not call for any work to be done outside the State of Victoria. I therefore accept Mr Ritchie’s submission that this renders the present case fundamentally different from the situation considered by Ball J in Olympia, and by Philip McMurdo J in the Wiggins Island Coal Export case. To use the language of Philip McMurdo J in the Wiggins Island case, one cannot say in the present case that the work done under this contract was “an integral part of construction work carried out within [Tasmania]”. (CF [2015] QSC 307 [40])
83 Acceptance of Dr Weston-Scheuber’s submissions on this point therefore depends upon the conclusion, as a matter of statutory construction, that the references to “land” in the definition of construction work and related goods and services in the statute must be taken as referring to land in Victoria and nowhere else. Mr Ritchie submitted that, insofar as Dr Weston-Scheuber relied on s48 of the Interpretation of Legislation Act, it said nothing about references to “land”. The only possible expression in that section which could refer to land was the reference to “things”. He contended that land was not a “thing”. In the circumstances, it is unnecessary to express any concluded view on this point.
84 As I have sought to explain above, authoritative approaches to statutory construction do not apply these territorial presumptions slavishly or in a reductionist manner. In Fletcher’s case, the High Court did not, as logically it should have if the reductionist approach were to have been taken, say that, insofar as the definition of hire-purchase agreement in the Victorian Hire-Purchase Act 1958 referred to “goods”, those “goods” must be situated in Victoria, with the effect that the Victorian Act did not apply to the relevant hire-purchase agreement. Again, in Goodwin v Jorgensen, the High Court proceeded upon the footing that both the New South Wales Hire-Purchase Act, as to a hirer’s obligation to disclose the whereabouts of goods the subject of a hire-purchase agreement, and the Australian Capital Territory statute, as to the agreement’s formation, applied to the same hire-purchase agreement. An approach to statutory construction which therefore assumes the existence of a neat demarcation between State statutes with no potential for overlap is unjustified.
85 In my view, the Victorian Act is, in a general sense, applicable to the present claim.
Nature of proceedings
86 Speaking of the effect of the Building and Construction Industry Security of Payment Act 2002, Vickery J said:
“The Act has had a substantial effect in shifting the power balance between principals and subcontractors in construction contracts in Victoria and in other States and Territories where legislation in similar terms and with the same objects has been enacted. Subcontractors are now in a position to promptly secure payments of progress claims with the aid of a statutory mechanism which compliments the provisions of the construction contract. Outstanding claims of the principal under the contract, arising for example from poor workmanship or delay, are preserved as future enforceable claims, but cannot stand in the way of prompt payment of a progress claim found to be due under the expeditious process provided for in the Act.” (Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor (2009) 26 VR 112; [2009] VSC 156)
87 It will be recalled that Dr Weston-Scheuber’s contention on behalf of Modscape was that the present application should be treated as the plaintiff’s application for summary judgment, with the result that it would necessarily fail unless the very high standards of certainty of proof demanded for the success of such applications traditionally were achieved (see s63(1) of the Civil Procedure Act 2010, authorising a court to give summary judgment in a civil proceeding “if satisfied that … a defence … has no real prospect of success”). It might have been thought to have liberalised the ability of plaintiffs to obtain summary judgment. Upon analysis and in light of the authoritative exposition of the operation of this provision by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, a plaintiff’s ability to obtain summary judgment over a defendant’s objection is no less circumscribed than it was 40 years ago. The demonstration of any triable issue or conflict of evidence upon a material element of the cause of action would seem sufficient to defeat a plaintiff’s application. A regime which depended for its operation upon a plaintiff’s obtaining summary judgment under this regime could not possibly conform to the revolutionary effect ascribed (in my respectful opinion correctly) by Vickery J to the Building and Construction Industry Security of Payment Act.
88 The proper standard of proof in an application under this statute was the subject of detailed argument and full analysis by his Honour Judge Woodward in 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674. His Honour rejected the contention, made here by Dr Weston-Scheuber on behalf of the defendant, that success for a plaintiff under the statute required proof to the same level of certainty as was required upon a summary judgment application under s63 of the Civil Procedure Act 2010. His Honour’s analysis was based upon the premise that the plaintiff’s application was made, as here, by originating motion. His Honour said of a similar contention put before him:
“There is no basis as a matter of logic, nor in the authorities, for treating a procedure that provides for a proceeding to be determined summarily, as synonymous with an application for summary judgment under the CPA or the Rules.” [2018] VCC 674 [40]
Necessarily, therefore, on an application such as this, the Court is empowered to make determination on conflicts of evidence, which I have done. Judge Woodward correctly observed that in making such determinations, regard should be had to s140 of the Evidence Act 2008. I respectfully adopt his Honour’s approach and reasoning.
89 Any injustice which the summary procedure under the Building and Construction Industry Security of Payment Act 2002 might be thought to inflict by effectively excluding a raft of defence and counterclaim points which, according to the general law of contract and legal procedure, might be relied upon by a defendant, may ultimately be mitigated by the ability to revisit these matters later (see s43 of the Act). In one sense, a determination made under the summary procedure in the statute could be regarded as analogous to a determination granting interlocutory injunctive relief. The outcome in favour of the grant of relief is provisional only. No doubt, the analogy is far from complete. Nevertheless, the existence of s43 of the Act provides an answer to the usual rationale for declining to grant a plaintiff summary judgment where some point is the subject of dispute. The grant of summary judgment in the ordinary case would necessarily exclude the defendant forever from relying upon the point or points in denial of liability. This is not the case under the Building and Construction Industry Security of Payment Act 2002.
One contract or a multiplicity of contracts?
90 The defendant’s contention is that the present claim pertains to part, only, of a much larger contract which is the subject of a pending proceeding in the Court. It is not competent, says the defendant, to “pluck” part of that contract out and render it the subject of a separate proceeding.
91 Implicitly, I have accepted the plaintiff’s contention that the matter sued upon is a separate and distinct contract. The history shows that there were separate quotations and purchase orders, each exhibiting all the features of an individual contract. I see no reason why they should not be treated as such. This is not to say that the several contracts ought not be regarded as related to one another or that a breach of one might not be thought to “impeach” a claim by the contract breaker under one of the other contracts for the purposes of the rules as to equitable set-off (see Indrisie v General Credits Limited [1985] VR 251; British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 136). The present determination under the statute does not preclude reliance upon these doctrines subsequently in the larger proceeding.
Is this a claim under the Act?
92 A claim for the purposes of the Building and Construction Industry Security of Payment Act 2002 to be effective “must state that it is made under this Act” ― viz, the Building and Construction Industry Security of Payment Act 2002 (see s14(2)). In the present case, the text relied on as meeting this requirement is as follows: “This claim is made under the Securities of Payment Act.” I have summarised the arguments of the parties on this matter above.
93 The principal point relied on by Dr Weston-Scheuber was that, given the interstate element in the transaction, it would not be clear to a reasonable observer which Act was being referred to as between Victoria and Tasmania (see [46] above). This point might be regarded as analogous to what is sometimes described in the law of private international laws as “false conflict”. In broad terms, the consequences of making a demand under one State Act or another is the same. The statutes of the various States are not identical, but they all seek to achieve the general effect described by Vickery J in his judgment in Hickory Developments Pty Ltd v Schiavello, quoted above. Putting that consideration to one side, upon the findings that I have made this invoice related to work done in Victoria under a contract made in Victoria. There is therefore no ground for doubt that if the general species of statute or “Act” has been identified, it is the Victorian statute which is being relied upon.
94 Ultimately, the only way that a claimant can be confident that this element of the requirements of the statute have been met is by an accurate reference to the claims being made under the “Building and Construction Industry Security of Payment Act 2002”. The sort of inaccuracy that we find in the present invoices is to be deplored. Nevertheless, by its very nature, the revolutionary effect of this statute, as described by Vickery J, must be notorious within the building and construction industry across Australia. In the analyses of the operation of this statute and its interstate counterparts in the raft of authorities to which I was referred, it is common for judges to refer to the relevant statute as the “SOP Act”, the acronym being an abbreviation for “Security of Payment”. That abbreviation is faithfully reproduced on the present invoices, subject to it being erroneously put in the plural rather than the singular. In my view, neither Modscape, as a building industry operator, nor any other reasonable observer would be in doubt as to the purport of the statement at the foot of the relevant invoice. This requirement for the application of the statute has been met.
Multiplicity of claims
95 It will be recalled that Dr Weston-Scheuber contended that there had been a breach by South City Plaster of s14(8) of the Act by its rendering of multiple payment claims for the same reference date. Section 14(8) of the Act provides as follows:
“A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.”
She referred to paragraphs 33 - 35 of Mr Barker’s affidavit, affirmed 29 June 2018. He referred to the following invoices:
(a)J2726C in the amount of $33,300.96 (inc GST);
(b)J2727C in the amount of $33,525.36 (inc GST); and
(c)J2728C in the amount of $16,500 (inc GST).
96 In my view, no breach of s14(8) is demonstrated. Of the three invoices, two were the subject of the present proceeding. They were forwarded under cover of the same email. In Hickory Developments Pty Ltd v Schiavello (2009) 26 VR 112, 145 [153], Vickery J accepted a contention that:
“From a practical point of view, the delivery of … two tax invoices at the same time and in the same envelope could properly be described as one payment claim”.
97 The other invoice is made with respect to a different purchase order, and therefore, upon the analysis I have adopted, under a different contract.
Reference date
98 The entitlement to a progress payment under the terms of the statute is dependent upon there being a reference date. The relevant documents made no express provision for a reference date. The existence and occasion for a reference date is governed by s9(2) of the statute, which provides as follows:
“In this section, ‘reference date’, in relation to a construction contract, means—
(a)a date determined by or in accordance with the terms of the contract as—
(i) a date on which a claim for a progress payment may be made; or
(ii) a date by reference to which the amount of a progress payment is to be calculated—
in relation to a specific item of construction work carried out or to be carried out or a specific item of related goods and services supplied or to be supplied under the contract; or
(b)subject to paragraphs (c) and (d), if the contract makes no express provision with respect to the matter, the date occurring 20 business days after the previous reference date or (in the case of the first reference date) the date occurring 20 business days after—
(i) construction work was first carried out under the contract; or
(ii) related goods and services were first supplied under the contract; or
(c)in the case of a single or one-off payment, if the contract makes no express provision with respect to the matter, the date immediately following the day that—
(i) construction work was last carried out under the contract; or
(ii) related goods and services were last supplied under the contract; or
(d)in the case of a final payment, if the contract makes no express provision with respect to the matter, the date immediately following—
(i) the expiry of any period provided in the contract for the rectification of defects or omissions in the construction work carried out under the contract or in related goods and services supplied under the contract, unless subparagraph (ii) applies; or
(ii) the issue under the contract of a certificate specifying the final amount payable under the contract a final certificate ; or
(iii) if neither subparagraph (i) nor subparagraph (ii) applies, the day that—
(A) construction work was last carried out under the contract; or
(B) related goods and services were last supplied under the contract.”
99 Mr Ritchie submitted that the following were reference dates:
(a)24 December 2015;
(b)27 January 2016; and
(c)24 February 2016.
100 Dr Weston-Scheuber noted that Mr Zhang’s affidavit deposed to the relevant work having been completed in January 2016. She noted that this was contradicted by Mr Baker in his affidavit and was, she said, inconsistent with the pleadings in the other pending proceeding. Dr Weston-Scheuber’s reference to the “further amended statement of claim” I take to be a reference to what is described as the second amended statement of claim dated 15 June 2017, filed in Proceeding No CI-17-01751, where South City Plaster have brought a claim for relief under a multiplicity of contracts said to be referable to work at the Royal Hobart Hospital. Paragraph 39 of that pleading refers to what is described as “Contract 5”, which, according to paragraph 37, is work carried out in response to Modscape’s Purchase Order RHH/2000.4. Paragraph 39 says that the work under this contract, which appears to be the one relevant to the present proceeding, was carried out “between December 2015 and February 2016”. Dr Weston‑Scheuber appears to be correct in saying that this is inconsistent with a statement by Mr Zhang that such work was concluded in January 2016. However, it is not inconsistent with the case made by Mr Ritchie in the present proceeding that the work was concluded on 24 February 2016.
101 Paragraph 67 of the pleading states that “In February 2016, SCP carried out the Contract 8 Works.” Paragraph 65 states that this was work carried out pursuant to Modscape Order RHH/2000.7. Again, this pleading that work was completed in February 2016 is not inconsistent with the case made by Mr Ritchie on behalf of South City Plaster in this proceeding. In any event, this pleading, unlike the affidavit, is not verified upon oath or affirmation and therefore cannot carry the same weight as an affidavit would. Dr Weston‑Scheuber referred to paragraphs 46 and 47 of Mr Barker’s affidavit, of 29 June 2018, that even in March work was incomplete. He said that photographs “show that the work SCP was carrying out installing plasterboard in the corridors was still in progress”. I have already given my reasons for preferring Mr Zhang’s evidence on this point to Mr Barker’s. The work on the corridors is not, as I construe the document, part of the work the subject of the present claim.
Conclusion
102 It follows, in my view, that the plaintiff should succeed.
Costs
103 I have heard no submissions on the question of costs so I will reserve them.
Disposition
104 I will direct the parties within 14 days to bring in short minutes to give effect to these reasons.
24
0