Waco Kwikform Ltd v Complete Access Scaffolding (NSW) Pty Ltd - [2020] NSWSC 1702

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Waco Kwikform Ltd v Complete Access Scaffolding (NSW) Pty Ltd [2020] NSWSC 1702
Hearing dates: 30 November 2020
Date of orders: 30 November 2020
Decision date: 30 November 2020
Jurisdiction: Equity - Technology and Construction List
Before: Stevenson J
Decision:
Summons dismissed with costs; Plaintiff to pay to the First Defendant moneys paid into Court

Catchwords:
BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1989 should be quashed – reference date – whether cl 4.1 of the construction contract was one by or in accordance with which the date for a progress claim was determined – whether term expressly nominates the date by which the claim may be made – whether s8(2)(a) of the Building and Construction Industry Security of Payment Act 1999 enlivened

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:
Greenwood Futures v DSD Builders [2018] NSWSC 1407
Patrick Stevedores Operations No 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413
Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116

Category: Principal judgment
Parties: Waco Kwikform Ltd (Plaintiff)
Complete Access Scaffolding (NSW) Pty Ltd (First Defendant)
Callum Campbell (Second Defendant)
Adjudicate Today Pty Ltd (Third Defendant)
Representation:
Counsel:
B Le Plastrier (Plaintiff)
D Weinberger (First Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
HBA Lawyers (First Defendant)

File Number(s): 2020/295113

Ex tempore Judgment (REVISED)

The plaintiff, Waco Kwikform Ltd, seeks to challenge an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) that it pay the defendant, Complete Access Scaffolding (NSW) Pty Ltd (“CAS”), $301,856.36.
The sole basis of the challenge to the adjudication determination is that the relevant payment claim was "not a valid claim as there was no reference date" (para C14 of the List Statement).
The parties agree that this question turns on whether or not the construction contract between them made "express provision" with respect to "the date on which a claim for a progress payment may be made" for the purpose of s 8(2)(a) of the Act as it then stood.
S 8(2)(a) at the relevant time provided:

8 Rights to progress payments
…
(2) In this section, reference date, in relation to a construction contract, means:
(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract, or
(b) if the contract makes no express provision with respect to the matter – the last day of the named month in which the construction work was first carried out … under the contract and the last day of each subsequent month.

The relevant provision in the contract is clause 4.1:

“4.1 Claims submitted by the 20

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: [2020] NSWSC 1702
Decision Date: 30 November 2020

CaseChat Overview and Summary

The matter before the court involved a dispute between Waco Kwikform Ltd and Complete Access Scaffolding (NSW) Pty Ltd. The central issue was whether an adjudication determination under the Building and Construction Industry Security of Payment Act 1989 should be quashed due to the parties' agreement regarding the reference date for a progress claim. Specifically, the court examined whether clause 4.1 of the construction contract was one by or in accordance with which the date for a progress claim was determined, and whether it expressly nominated the date by which the claim could be made. Additionally, the court considered whether section 8(2)(a) of the Act was engaged.

The court held that clause 4.1 of the construction contract did not expressly nominate the date by which the claim could be made. Instead, it set out a method for determining the date for a progress claim. Given that the method was not followed, the reference date was determined under the Act. The court further found that the determination of the reference date under the Act did not invalidate the adjudication determination as it did not expressly nominate the date by which the claim could be made. Therefore, the application to quash the determination was dismissed.

The court's reasoning and conclusion were based on a detailed analysis of the construction contract and the relevant provisions of the Act. The court found that the parties' agreement did not expressly nominate the date by which the claim could be made, and the method for determining the reference date was not followed. The court also noted that the adjudication determination was valid, as the Act did not require the reference date to be expressly nominated in the contract. Consequently, the application to quash the determination was dismissed, and the adjudication determination remained in effect.

Orders