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Style Timber Floor Pty Ltd v Krivosudsky

Style Timber Floor Pty Ltd v Krivosudsky

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Case Copied 16 July 2019 52 min read

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Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171
Hearing dates: 4 July 2019
Decision date: 16 July 2019
Before: Bell P at [1];
Leeming JA at [8];
Simpson AJA at [82]
Decision:
1.   Extend the time within which to apply for leave to appeal to 20 February 2019.

2.   Grant leave to appeal, and direct that the draft notice of appeal stand as a notice of appeal.
3.   Appeal dismissed, with costs.
Catchwords: BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed
Legislation Cited: Building and Construction Industry Payment Act 2004 (Qld), s 18
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8, 11, 13, 14, 15, 16, 20, 21, 22, 32
Building and Construction Industry Security of Payment Act 2002 (Vic), s 15
District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), ss 48, 51
Cases Cited: 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674
Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391
Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; 337 ALR 452
Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11; 365 ALR 345
Category: Principal judgment
Parties: Style Timber Floor Pty Ltd (Applicant)
Rastislav Krivosudsky (Respondent)
Representation:
Counsel:
Dr A J Greinke (Applicant)
E P Anderson (Respondent)
Solicitors:
Auyeung Hencent & Day Lawyers (Applicant)
Knap Lawyers (Respondent)

File Number(s): 2018/369039
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

02 November 2018

Before:

Judicial Registrar Howard

File Number(s):

2018/00316853

HEADNOTE

[This headnote is not to be read as part of the judgment]

Style Timber Floor Pty Ltd engaged Mr Krivosudsky to perform floor grinding and topping work at various sites in…

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.

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Details

Case: [2019] NSWCA 171
Decision Date: 16 July 2019

CaseChat Overview and Summary

Style Timber Floor Pty Ltd (the claimant) sought payment for work done under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The respondent, Krivosudsky, had responded to the claimant's payment claim with an email that proposed a meeting and referred to numerous emails, photographs, back charges, and complaints. The email stated that the claimant would understand why payment could not be made and that the damages caused exceeded the claimed amount. The claimant argued this email did not constitute a valid payment schedule under the Act. The matter proceeded to the Court of Appeal of New South Wales, with Bell P, Leeming JA, and Simpson AJA presiding.

The central legal issue before the Court of Appeal was whether the respondent's email constituted a valid payment schedule for the purposes of the *Building and Construction Industry Security of Payment Act 1999* (NSW). Specifically, the court had to determine if the email adequately indicated the reasons for withholding payment, as required by section 14(3) of the Act, and whether it sufficiently identified the scope of the dispute.

The Court of Appeal reasoned that for an email to qualify as a payment schedule, it must clearly indicate the reasons for withholding payment and the amount the respondent proposes to pay. The respondent's email, while referencing various issues, failed to specify which of the seven invoices or five sites were in dispute, nor did it quantify the alleged damages or state a proposed payment amount. The court found that the broad references to "many emails, photos, back charges and complaints" and the assertion that damages exceeded the claim were too vague to allow the claimant to understand the specific reasons for withholding payment or the scope of the dispute. Consequently, the court upheld the decision at first instance that the email was not a valid payment schedule.

The Court of Appeal dismissed the appeal, with costs.

Orders

Orders of the court

1. Extend the time within which to apply for leave to appeal to 20 February 2019.

2. Grant leave to appeal, and direct that the draft notice of appeal stand as a notice of appeal.

3. Appeal dismissed, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171
Hearing dates:	4 July 2019
Decision date:	16 July 2019
Before:	Bell P at [1]; Leeming JA at [8]; Simpson AJA at [82]
Decision:	1. Extend the time within which to apply for leave to appeal to 20 February 2019. 2. Grant leave to appeal, and direct that the draft notice of appeal stand as a notice of appeal. 3. Appeal dismissed, with costs.
Catchwords:	BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed
Legislation Cited:	Building and Construction Industry Payment Act 2004 (Qld), s 18 Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8, 11, 13, 14, 15, 16, 20, 21, 22, 32 Building and Construction Industry Security of Payment Act 2002 (Vic), s 15 District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), ss 48, 51
Cases Cited:	3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674 Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391 Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; 337 ALR 452 Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11; 365 ALR 345
Category:	Principal judgment
Parties:	Style Timber Floor Pty Ltd (Applicant) Rastislav Krivosudsky (Respondent)
Representation:	Counsel: Dr A J Greinke (Applicant) E P Anderson (Respondent) Solicitors: Auyeung Hencent & Day Lawyers (Applicant) Knap Lawyers (Respondent)
File Number(s):	2018/369039
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 02 November 2018 Before: Judicial Registrar Howard File Number(s): 2018/00316853