Supreme Court New South Wales

• Medium Neutral Citation: Ardnas (No 1) Pty Ltd -v- J Group (Aust) Pty Ltd [2012] NSWSC 805
• Hearing dates: 28 June 2012
• Decision date: 28 June 2012
• Jurisdiction: Equity Division - Technology and Construction List
• Before: Hammerschlag J

Decision

Proceedings dismissed. Plaintiff to pay the first defendant's costs of the proceedings

• Catchwords: BUILDING AND CONSTRUCTION - Application to set aside adjudication determination on the basis of no jurisdiction on the grounds that the defendant impermissibly made, and the determination dealt with, more than one payment claim in relation to the same reference date in conflict with ss 13(1), 13(5) and 17(1) Building and Construction Industry Security of Payment Act 1999 (NSW) - HELD - Whether more than one payment claim was made to be viewed as a matter of substance not form - multiple invoices capable of being one payment claim for the purposes of the Act
• Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
• Cases Cited: Tailored Projects Pty Ltd v Jedfire Pty Ltd [2009] QSC 32
• Category: Principal judgment
• Parties: Ardnas (No 1) Pty Ltd - Plaintiff; J Group (Aust) Pty Ltd - First Defendant; Anthony Grieve - Second Defendant
• Representation: Counsel: N.A. Nicholls with F.F.F. Salama - Plaintiff; F.P. Hicks - First Defendant; Solicitors: Sandford Legal - Plaintiff; Blackstone Waterhouse Lawyers - First Defendant
• File Number(s): 2012/77424

EX TEMPORE Judgment

1 HIS HONOUR: These are proceedings to quash an adjudication determination dated 6 February 2012 made under the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act") on the grounds that the adjudicator had no jurisdiction to make it because its subject matter was more than one payment claim served in respect of one reference date, contrary to the provisions of ss 13(1) and 13(5) of the Act.

2 Those sections provide as follows:

13 Payment claims

(1)A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(5)A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.

3 The plaintiff also relies on the commencing words of s 17(1) of the Act which provides that:

17 Adjudication applications

(1)A claimant may apply for adjudication of a payment claim (an adjudication application) if:

(a)the respondent provides a payment schedule under Division 1 but:

(i)the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii)the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b)the respondent fails to provide a payment schedule to the claimant under Division 1 and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

4 The first defendant directed to the plaintiff two invoices under cover of one facsimile dated 20 December 2011. The invoices claimed separate amounts for separate work but both called on payment fourteen days from the date of the invoice, both of which bore the date 19 December 2012.

5 The first defendant put that this amounted to more than one payment claim in respect of one reference date which was impermissible. The consequence was, it put, that there was no valid application for adjudication and the adjudicator had no jurisdiction to intrude on the matter.

6 It pointed to the fact that each of the invoices contained the following notation:

This payment claim is made pursuant to s 13 of the Building and Construction Industry Security of Payment Act, 1999 (NSW). Your attention is drawn to s 14 of the Building and Construction Industry Security of Payment Act, 1999 (NSW).

7 It also pointed to the fact that in the body of the adjudication determination in at least one instance, the adjudicator made reference to "claims".

8 In Tailored Projects Pty Ltd v Jedfire Pty Ltd [2009] QSC 32 at [18] Douglas J said:

That each invoice also bore the words describing it as a claim made under the Act should not lead to the conclusion that the delivery of these documents at the one time amounted to the service of more than one payment claim. To conclude otherwise would require the triumph of form over substance, even in an area where adherence to form and strict compliance with the Act is important.

9 Although sent under cover of a letter referring to "payment claims" the payment schedule served by the plaintiff described the claim as "the claimant's claim" and responded to the first defendant's claim of $30,496.16, which is the total of the two invoices.

10 Further, in the adjudication determination the adjudicator described the documents taken into account as including "Claimant's Payment Claim dated 19 December 2011".

11 Viewing the matter as a matter of substance rather than form, only one payment claim was made comprising two amounts each reflected in an invoice of the same date.

12 It is, accordingly, not necessary for me to consider the submission that the adjudicator would have had no jurisdiction to have determined two claims with the same reference date.

13 The parties agreed that if the Court reached the conclusion that there was only one claim, the proceedings were to be dismissed. I so order.

14 $32,256.16 of the moneys standing in Court are forthwith to be paid to the first defendant. The plaintiff is to pay the first defendant's costs of the proceedings.

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Decision last updated: 16 July 2012