7 Skyland Pty Limited v K & H Jnaid Pty Limited [2007] NSWLC 7

7 Skyland Pty Limited v K & H Jnaid Pty Limited [2007] NSWLC 7

As the respondent failed to serve a Payment Schedule in response to the Payment Claim in accordance with the requirements of the Building and Construction Industry Security of Payment Act, defences and cross claims relying on matters arising under the construction contract cannot be raised. The proposed Amended Defence does not raise triable issues. Therefore, the plaintiff is entitled to summary judgment for the claimed amount.

Parties
Plaintiff: 7 Skyland Pty Limited; Defendant: K & H Jnaid Pty Limited
Jurisdiction
Australia
Judgment Date
06 June 2007
Procedural Posture
Civil / Application for Summary Judgment
Outcome
Judgment for the plaintiff
Legal Topics
Summary Judgment, Security of Payment, Defences Under Construction Contract, Misleading and Deceptive Conduct, Pleading Amendment
Construction Law Civil Procedure Summary Judgment Security of Payment Defences Under Construction Contract Misleading and Deceptive Conduct Pleading Amendment

Case Brief

Summary, issues, holding and outcome

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Parties

7 Skyland Pty Limited

Plaintiff

K & H Jnaid Pty Limited

Defendant

Procedural Posture

Civil / Application for Summary Judgment

Legal Issues

  1. 1 Whether summary judgment should be granted under s 15 of the Building and Construction Industry Security of Payment Act for failure to serve Payment Schedule
  2. 2 Whether the Defence and Cross Claim can be raised in these proceedings under s 15(4)(b) of the Act
  3. 3 Whether the proposed Amended Defence raises a triable issue

Ratio Decidendi

As the respondent failed to serve a Payment Schedule in response to the Payment Claim in accordance with the requirements of the Building and Construction Industry Security of Payment Act, defences and cross claims relying on matters arising under the construction contract cannot be raised. The proposed Amended Defence does not raise triable issues. Therefore, the plaintiff is entitled to summary judgment for the claimed amount.

Court Disposition

Judgment for the plaintiff

Orders

  • Judgment for the plaintiff in the sum of $33,024.00.
  • The defendant is ordered to pay the plaintiff interest on the judgment from 1 March 2007 to be calculated by the Registry.