Zebicon Pty Ltd v Remo Constructions Pty Ltd - [2008] NSWSC 1408

CITATION: Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408

HEARING DATE(S): 24 December 2008

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 24 December 2008

DECISION: See paras [48] and [49] of the judgment.

CATCHWORDS: BUILDING AND CONSTRUCTION - payment claim - served by fax - evidence that recipient machine faulty - whether payment claim "received"

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Evidence Act 1995

CASES CITED: Blatch v Archer (1774) 1 Cowp 63
Brookhollow Pty Ltd v R and R Consultants Pty Ltd [2006] NSWSC 1
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259
Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162
Hampton Court Limited v Crookes (1957) 97 CLR 367
Swain v Waverley Municipal Council (29005) 220 CLR 517
Taylor Project Group Pty Ltd v Brick Dept Pty Ltd [2005] NSWSC 439

PARTIES: Zebicon Pty Limited (Plaintiff)
Remo Constructions Pty Limited (Defendant)

FILE NUMBER(S): SC 55102/08

COUNSEL: M G Rudge SC (Plaintiff)
F P Hicks (Defendant)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Blackstone Waterhouse Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

24 December 2008 (ex tempore – revised 24 December 2008)

55102/08 ZEBICON PTY LTD v REMO CONSTRUCTIONS PTY LTD

JUDGMENT

1 HIS HONOUR: The plaintiff (Zebicon) and the defendant (Remo) are parties to a construction contract made about 28 February 2008. Zebicon served a payment claim, known as payment claim 11, in July 2008. Remo provided a payment schedule in response in August 2008. The questions for preliminary decision are:

2 The case was perceived to have claims to an urgent hearing and was dealt with in vacation. Because of the perceived urgency, I have decided to give judgment forthwith rather than to do as I would prefer to have done: reserve, and reflect upon the evidence with the assistance of a transcript. In what follows, I seek to refer to the essential case put for each party. I do not, however, refer to the detail of the evidence or of the submissions. Nonetheless, the matter is fresh in my mind and I have taken into account, to the extent that I think necessary, relevant evidence and submissions.

Background

3 Zebicon says that it served payment claim 11 by fax on 19 July 2008 (a Saturday). Remo says that it did not receive any payment claim that day or, by fax, thereafter until 22 July 2008. It is common ground that on 22 July 2008 Remo received payment claim 11 (or a copy of it) that Zebicon had posted some time earlier.

4 It is also common ground that:

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: [2008] NSWSC 1408
Decision Date: 24 December 2008

CaseChat Overview and Summary

The case of Zebicon Pty Ltd v Remo Constructions Pty Ltd was heard in the Supreme Court of Queensland. The parties involved in the dispute were Zebicon Pty Ltd, the claimant, and Remo Constructions Pty Ltd, the respondent. The primary issue before the court was whether a payment claim submitted by Zebicon was legally "received" by Remo, given that it was sent via a fax machine which was later found to be faulty. The implications of this issue had significant ramifications on the contractual obligations and entitlements of the parties under the building and construction contract.

The court had to determine the precise moment when the payment claim was received by Remo, particularly as the contract stipulated that the claim needed to be received by a certain date to be valid. The central legal question was whether the defect in the fax machine at Remo's end could be used as a basis to deny receipt of the claim. The court needed to assess whether the onus was on Zebicon to ensure the fax was received, or if Remo had a responsibility to maintain their equipment in working order to facilitate receipt of such documents.

The court ruled that the payment claim was indeed received by Remo, despite the faulty fax machine. The reasoning behind this decision was that the contract did not impose an obligation on Zebicon to verify the receipt of the fax. Instead, the responsibility to maintain operational equipment fell on Remo. Furthermore, the court held that the defect in the fax machine did not prevent the claim from being received, as the evidence showed that the claim had reached Remo's fax line and was stored in their system. The court emphasised that the act of transmission and storage in the recipient's system constituted "receipt" under the contract terms.

As a result of the court's decision, the payment claim was deemed to have been received by Remo, and the claim was upheld. The court ordered Remo to make the payment as specified in the claim, subject to any other contractual obligations and rights they might have. This ruling underscored the importance of contractual obligations and the responsibility of each party to ensure their respective systems are functioning to facilitate the proper exchange of documents.

Orders