MN Builders Pty Ltd v MMM Cement Rendering Pty Ltd [2019] NSWDC 734

MN Builders Pty Ltd v MMM Cement Rendering Pty Ltd [2019] NSWDC 734

There was no triable issue because a construction contract existed between the builder and subcontractor, disputes about the charging basis went to the terms rather than existence of the contract, the builder failed to provide a payment schedule within the stipulated period, and the seventh tax invoice was actually received by the builder's accounts section so it was served as a payment claim notwithstanding the pleaded mode of service. The subcontractor was therefore entitled to summary judgment under s 15 of the Act.

Jurisdiction
Australia
Judgment Date
04 December 2019
Procedural Posture
Civil Building and Construction Dispute Concerning Payment for Rendering Services / Notice of Motion for Summary Judgment on a Cross Claim
Outcome
Summary judgment entered for the cross-claimant against the cross-defendant, with interest and costs; orders stayed to 31 January 2020 subject to conditions.
Legal Topics
['summary Judgment' 'security of Payment' 'construction Contract' 'payment Claim' 'service of Payment Claim']
['building and Construction' 'civil Procedure'] ['summary Judgment' 'security of Payment' 'construction Contract' 'payment Claim' 'service of Payment Claim']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Building and Construction Dispute Concerning Payment for Rendering Services / Notice of Motion for Summary Judgment on a Cross Claim

Legal Issues

  1. 1 ['Whether there was a triable issue as to the existence of a construction contract for the purposes of the Construction Industry (Security of Payment) Act 1999 (NSW).' 'Whether the seventh tax invoice was served as a payment claim.' "Whether the cross-claimant's pleading that service occurred by hand delivery precluded reliance on evidence that the invoice was received by the builder's accounts section." 'Whether the cross-defendant was precluded from raising defences where no payment schedule was served within the stipulated period.']

Ratio Decidendi

There was no triable issue because a construction contract existed between the builder and subcontractor, disputes about the charging basis went to the terms rather than existence of the contract, the builder failed to provide a payment schedule within the stipulated period, and the seventh tax invoice was actually received by the builder's accounts section so it was served as a payment claim notwithstanding the pleaded mode of service. The subcontractor was therefore entitled to summary judgment under s 15 of the Act.

Court Disposition

Summary judgment entered for the cross-claimant against the cross-defendant, with interest and costs; orders stayed to 31 January 2020 subject to conditions.

Orders

  • ['Summary judgment for the Cross-claimant against the cross-defendant in the sum of $129,827.50 pursuant to section 15(2) of the Building and Construction Industry Security Payment Act 1999.' 'Interest on the above sum in the amount of $7,437.52.' "The cross-defendant pay the cross-claimant's costs on the ordinary...