T S Constructions Pty Ltd v Piecor Pty Ltd
[2009] VCC 1045
•29 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
BUILDING CASES DIVISION
Case No. CI-09-02237
| T S CONSTRUCTIONS PTY LTD | Plaintiff |
| (ACN 068 447 610) | |
| v | |
| PIECOR PTY LTD | Defendant |
| (ACN 108 790 530) |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 June 2009 |
| DATE OF JUDGMENT: | 29 June 2009 |
| CASE MAY BE CITED AS: | T S Constructions Pty Ltd v Piecor Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1045 |
REASONS FOR JUDGMENT
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Catchwords: Summary judgment application – Building and Construction Industry Security of Payment Act 2002 – Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 – Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462 – Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Roberts | Deacons |
| For the Defendant | Mr N Pane | DLA Phillips Fox |
DRAFT
HIS HONOUR:
1 This is an application for summary judgment pursuant to Order 22 of the County Court Civil Procedure Rules. The application is based upon s.16(2)(a) of the Building and Construction Industry Security of Payment Act 2002 (“the Act”).
2 The approach to be taken to a summary judgment application is stated by the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, at 89, as follows:
“The power to order summary or final judgment is one that should be exercised with great care. It should never be exercised unless it is clear that there is no real question to be tried.”
3 To similar effect is the statement of Herring CJ and Lowe J in Australian Can Co Pty Ltd v Levin & Co Pty Ltd [1947] VLR 332, at 334, that:
“Where there is a real case to be investigated either in fact or law, leave
to defend should be given.”
4 On or about 21 June 2006, the plaintiff and the defendant entered into an agreement for the design and construction of the Island Eco Resort at Phillip Island (“the agreement”). Pursuant to the agreement, the plaintiff undertook to design and construct two hundred and eleven holiday villas, communal buildings, civil works and infrastructure. Since the agreement was entered into on 21 June 2006, i.e., prior to 30 March 2007, the amendments to the Act effected by the Building and Construction Industry Security of Payment (Amendment) Act 2006 do not apply.
5 On 13 October 2008, the plaintiff served Payment Claim No. 26 for the sum of $53,296.54 on the defendant. A payment schedule was served by the defendant on 28 November 2008, outside the time required by s.15(4) of the Act. On 24 March 2009, the plaintiff served Payment Claim No. 27 for the sum of $511,779.56 on the defendant. No payment schedule was served in response by the defendant.
DRAFT
6 The sum claimed in Payment Claim No. 27 of $511,779.56 includes the sum of $53,296.54 claimed in Payment Claim No. 26.
7 Payment Claim No. 26 has been paid in full by the defendant as to the plaintiff just recently. The only issue with respect to Payment Claim No. 26 is the entitlement of the plaintiff to interest with respect to it.
8 The plaintiff’s claim is thus now for the sum of $458,483.02.
9 Mr Pane, who appeared for the defendant, submitted that there were real questions to be tried and therefore summary judgment application should be dismissed.
10 Firstly, he submitted that the plaintiff was not entitled to deliver Payment Claim No. 27 since the agreement only provided for the delivery of one payment claim upon Practical Completion being reached and the plaintiff had already done so by serving Payment Claim No. 26.
11 Secondly, he submitted that the plaintiff was not entitled to deliver Payment Claim No. 27 since pursuant to Clause 42A.2(f) of the amended General Conditions of Contract for Design and Construct AS:4300-1995, the plaintiff was only entitled to deliver a payment claim where it had provided a statutory declaration and documentary evidence to the defendant with respect to payment of subcontractors. It had not done this.
12 Thirdly, Mr Pane submitted that it was arguable that the issue of this proceeding was an abuse of process since the sum claimed related to works carried out by a sub-contractor, By-Jas Engineering Pty Ltd, which had issued proceedings in this Court against the plaintiff, claiming the sum of $480,812.00 by way of damages. In its Defence, the plaintiff in this proceeding, as defendant, has denied that it owed any money to the plaintiff.
13 The short answer to Mr Pane’s submission is that any of these three matters could have been raised in a timeously served payment schedule provided by
DRAFT
the defendant. It is now too late to raise these matters.
14 In Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462, a decision of the New South Wales Court of Appeal delivered on 10 November 2005, Ipp JA stated at p 484:
“Provided that a payment claim is made in good faith and purported to comply with s.13(2) of the Act, the merits of that claim, including the question whether the claim complies with s.13(2), is a matter for adjudication under s.17 and not a ground for resisting summary judgment in proceedings under s.15. In particular, if no adjudication is sought summary judgment cannot be resisted on grounds that could have been raised by a way of a payment schedule leading to adjudication.
. . .
[my emphasis]
Section 13(2) of the New South Wales Act broadly corresponds with section
14(3) of the Act.15 Similarly, in Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1, Palmer J, stated, at paragraph 41:
“. . . In the case of a payment claim which purports reasonably on its face to comply with s.13(2). … if the respondent does not serve a payment schedule within the time limit under the Act and the claimant ultimately seeks the entry of judgment under s.15(4), the respondent may not resist summary judgment on the ground that the payment claim was not a valid payment claim by reason of non-compliance with the requirements of s.13: the respondent has only one chance to take that objection, namely, in a timeously served payment schedule.”
16 Mr Pane submitted that the decisions in Nepean Engineering and Brookhollow should be confined to whether a plaintiff has an entitlement to payment and that they did not extend as to whether a party was entitled to serve a payment claim in the first place. In my view, these judgments should not be read so narrowly.
17 There is no real question to be tried.
18 There will be judgment for the plaintiff in the sum of $458,483.02.
DRAFT
19 I will hear from the parties on the question of interest and costs.
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