Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248

Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248

The May invoice failed to identify the specific construction work or the basis for part of the claimed amount, and thus did not satisfy the requirement under s 14(3)(a) of the Act for a valid payment claim. It was also held to be a final payment claim, for which operation was suspended until contractually permitted. Summary judgment on the cross-claim could not be granted as a matter of law.

Parties
First Applicant: Protectavale Pty Ltd; Second Applicant: Hendara Pty Ltd; First Respondent: K2K Pty Ltd; Second Respondent: Lorne Bay Pty Ltd; Third Respondent: Leonid Komm; Fourth Respondent: Stephen Kleytman; Fifth Respondent: Kleytman Investments Pty Ltd; Sixth Respondent: Buildkomm Pty Ltd; Seventh Respondent: Lubov Komm; Eighth Respondent: Sabina Kleytman
Jurisdiction
Australia
Judgment Date
19 August 2008
Procedural Posture
Building and Construction Dispute / Summary Judgment Application (cross Claim)
Outcome
Application for summary judgment dismissed with costs.
Legal Topics
Payment Claims Under Building and Construction Industry Security of Payment Act 2002 (vic), Summary Judgment, Conditional Trust of Retention Moneys, Progress Payments Vs Final Payments, Payment Schedule Requirements
Building and Construction Law Trusts Practice and Procedure Payment Claims Under Building and Construction Industry Security of Payment Act 2002 (vic) Summary Judgment Conditional Trust of Retention Moneys Progress Payments Vs Final Payments Payment Schedule Requirements

Case Brief

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Parties

Protectavale Pty Ltd

First Applicant

Hendara Pty Ltd

Second Applicant

K2K Pty Ltd

First Respondent

Lorne Bay Pty Ltd

Second Respondent

Leonid Komm

Third Respondent

Stephen Kleytman

Fourth Respondent

Kleytman Investments Pty Ltd

Fifth Respondent

Buildkomm Pty Ltd

Sixth Respondent

Lubov Komm

Seventh Respondent

Sabina Kleytman

Eighth Respondent

Procedural Posture

Building and Construction Dispute / Summary Judgment Application (cross Claim)

Legal Issues

  1. 1 Is the May invoice a valid payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic)?
  2. 2 Does the payment claim sufficiently identify construction work?
  3. 3 Is the claim for a progress payment or a final payment under the contract and the Act?

Ratio Decidendi

The May invoice failed to identify the specific construction work or the basis for part of the claimed amount, and thus did not satisfy the requirement under s 14(3)(a) of the Act for a valid payment claim. It was also held to be a final payment claim, for which operation was suspended until contractually permitted. Summary judgment on the cross-claim could not be granted as a matter of law.

Court Disposition

Application for summary judgment dismissed with costs.

Orders

  • The second respondent's application for summary judgment is dismissed.
  • The second respondent is to pay the first applicant's costs of the application.