Legal Research
Cases
TFM Epping Land Pty Ltd v Decon Australia Pty Ltd

TFM Epping Land Pty Ltd v Decon Australia Pty Ltd

Link copied

Case Copied 14 May 2020 61 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93
Hearing dates: 21 April 2020
Date of orders: 14 May 2020
Decision date: 14 May 2020
Before: Basten JA at [1];
Meagher JA at [77];
Emmett AJA at [78]
Decision:
(1)   Subject to (2) and to the extent necessary, grant the applicants leave to appeal from the judgment in the Equity Division given on 11 October 2019.

(2)   Limit the grant of leave to grounds (1)-(3) set out in the amended draft notice of appeal dated 2 March 2020 and filed in this Court on that date.

(3)   Deem the amended draft notice of appeal to be filed pursuant to the grant of leave.

(4)   Dismiss the appeal.
(5)   Order the applicants/appellants to pay the respondent’s costs in this Court.
Catchwords:
BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)

BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid

BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4)
STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)
Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 13, 14, 15, 32, 34
Building and Construction Industry Security of Payment Amendment Act 2018 (NSW), Sch 1
District Court Act 1973 (NSW), s 127
Supreme Court Act 1970 (NSW), s 101
Building and Construction Industry Security of Payment Regulation 2008 (NSW), Sch 1
Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited:
AB v State of NSW [2014] NSWCA 243
Central Projects Pty Ltd v Davidson [2018] NSWSC 523
Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69
Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371
Greenwood Futures v DSD Builders [2018] NSWSC 1407
King Investment Solutions v Hussain [2005] NSWSC 1076
Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Macatangay v State of New South Wales (No 2) [2009] NSWCA…

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.

Keep reading for free

Create a free CaseChat account to read TFM Epping Land Pty Ltd v Decon Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 93
Decision Date: 14 May 2020

CaseChat Overview and Summary

The case of TFM Epping Land Pty Ltd v Decon Australia Pty Ltd concerned a dispute over a progress payment claim made under the *Building and Construction Industry Security of Payment Act 1999* (NSW). TFM Epping Land Pty Ltd (the applicant) sought to appeal a judgment of the Equity Division concerning the validity of a payment claim made by Decon Australia Pty Ltd (the respondent).

The primary legal issues before the Court of Appeal were whether the respondent's payment claim was invalid due to the inclusion of interest that accrued after the reference date, and whether the claim was rendered invalid by a failure to serve a compliant supporting statement. The court also considered whether a payment claim could be invalid if it included amounts not strictly owing under the contract, such as sums claimed on a quantum meruit basis, within the context of the statutory adjudication scheme.

The Court of Appeal, in dismissing the appeal, applied principles of statutory interpretation to the *Building and Construction Industry Security of Payment Act 1999*. It held that the inclusion of interest accruing after the reference date did not invalidate the claim, as the Act permitted claims to include amounts that would become due and payable after the reference date. Furthermore, the court found that while a compliant supporting statement is a prerequisite for a valid claim, a minor defect in the supporting statement, such as the inclusion of a small amount of interest, did not necessarily render the entire claim invalid, particularly where the overarching purpose of the Act was to facilitate progress payments. The court also affirmed that claims could include amounts not strictly owing under the contract, provided they were otherwise validly made under the Act.

The appeal was dismissed, with the applicants ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Subject to (2) and to the extent necessary, grant the applicants leave to appeal from the judgment in the Equity Division given on 11 October 2019.

(2) Limit the grant of leave to grounds (1)-(3) set out in the amended draft notice of appeal dated 2 March 2020 and filed in this Court on that date.

(3) Deem the amended draft notice of appeal to be filed pursuant to the grant of leave.

(4) Dismiss the appeal.

(5) Order the applicants/appellants to pay the respondent’s costs in this Court.

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:	TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93
Hearing dates:	21 April 2020
Date of orders:	14 May 2020
Decision date:	14 May 2020
Before:	Basten JA at [1]; Meagher JA at [77]; Emmett AJA at [78]
Decision:	(1) Subject to (2) and to the extent necessary, grant the applicants leave to appeal from the judgment in the Equity Division given on 11 October 2019. (2) Limit the grant of leave to grounds (1)-(3) set out in the amended draft notice of appeal dated 2 March 2020 and filed in this Court on that date. (3) Deem the amended draft notice of appeal to be filed pursuant to the grant of leave. (4) Dismiss the appeal. (5) Order the applicants/appellants to pay the respondent’s costs in this Court.
Catchwords:	BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4) STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8)
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 13, 14, 15, 32, 34 Building and Construction Industry Security of Payment Amendment Act 2018 (NSW), Sch 1 District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 101 Building and Construction Industry Security of Payment Regulation 2008 (NSW), Sch 1 Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited:	AB v State of NSW [2014] NSWCA 243 Central Projects Pty Ltd v Davidson [2018] NSWSC 523 Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190; [2009] NSWCA 69 Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371 Greenwood Futures v DSD Builders [2018] NSWSC 1407 King Investment Solutions v Hussain [2005] NSWSC 1076 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334 Macatangay v State of New South Wales (No 2) [2009] NSWCA…