Style Timber Floor Pty Ltd v Krivosudsky

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.