Thiess Pty Ltd & Anor v Lane Cove Tunnel Nominee Company Pty Ltd & Anor

Thiess Pty Ltd and another (the appellants) appealed a decision concerning a construction contract and the operation of the Building and Construction Industry Security of Payment Act 1999 (NSW). The dispute centred on whether the contract's provisions regarding payment schedules supplanted the statutory timeframes for providing such schedules in response to a progress payment claim. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the contract intended to replace the ten-day period prescribed by section 14.4(b)(ii) of the Act for providing a payment schedule with the four-business-day period stipulated in clause 14.3A of the contract. This required determining if there was clear contextual support for the necessary implication that the contract provided an alternative answer to the problem of the timeframe for a payment schedule in response to a statutory payment claim.

The court considered the trial judge's reasoning, which found that the contract did not intend to supplant the statutory timeframe. The judge identified two key incongruences. Firstly, clause 14.3A restricted the amount that could be disputed in a payment schedule to that not certified by the Independent Verifier, a restriction not present in the Act. This suggested the contractual timeframe was not intended to apply to statutory claims, which did not require such a certificate or involve this limitation. Secondly, the contractual process under clause 14.5 allowed for dispute resolution regarding the certified amount, with payment due after a further period. Applying the appellants' construction would mean the respondents would be liable to pay not less than the certified amount within four business days, irrespective of the dispute resolution mechanism in clause 14.5, which the court found to be an additional reason against the appellants' interpretation.

The appeal was dismissed, with the Court of Appeal upholding the trial judge's decision that the contractual provisions did not override the statutory timeframes for payment schedules in this context. The appellants were ordered to pay the costs of the appeal.