A-Civil Aust Pty Ltd v Meso Solutions Pty Ltd [2023] NSWSC 372

A-Civil Aust Pty Ltd v Meso Solutions Pty Ltd [2023] NSWSC 372

A-Civil failed to prove that Meso made the alleged representations that Claim 16 could be ignored, that no payment schedule was required, that Meso would not proceed to adjudication, or that it would withdraw the adjudication application; the ACL claims therefore failed. Claim 16 satisfied s 13(2) of the Act. Under s 11(1B), the statutory progress payment claimed by Meso became due and payable 20 business days after Claim 16 was made, notwithstanding that the documents required by cl 8.3(g) of the General Conditions did not accompany the claim. Clause 8.3(g) was disregarded under s 11(8), and if applicable would be void under s 34(2)(a). The s 17(2) notice was therefore not invalid on...

Jurisdiction
Australia
Judgment Date
17 April 2023
Procedural Posture
Application Challenging the Validity of a Payment Claim and Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw), With Claims Under the Australian Consumer Law / Principal Judgment After Hearing
Outcome
Application challenging the decision of the adjudicator dismissed. Claim for misleading or deceptive conduct under the ACL also dismissed, as no relevant misrepresentation was made.
Legal Topics
['validity of S 17(2) Notice' 'adjudication Determination' 'payment Claim Requirements' 'no Contracting Out' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'proof of Alleged Oral Representations']
['building and Construction' 'security of Payment' 'consumer Law' 'equity'] ['validity of S 17(2) Notice' 'adjudication Determination' 'payment Claim Requirements' 'no Contracting Out' 'misleading or Deceptive Conduct' 'unconscionable Conduct' 'proof of Alleged Oral Representations']

Case Brief

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Procedural Posture

Application Challenging the Validity of a Payment Claim and Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw), With Claims Under the Australian Consumer Law / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether A-Civil established that Meso made representations on 2 June 2022, 18 July 2022 or in early August 2022 that Meso would withdraw the adjudication application and that A-Civil was not required to issue a payment schedule.' 'Whether non-compliance with cl 8.3 of the General Conditions by Meso ousted the jurisdiction of the adjudicator.' 'Whether A-Civil waived compliance with cl 8.3 of the General Conditions.']

Ratio Decidendi

A-Civil failed to prove that Meso made the alleged representations that Claim 16 could be ignored, that no payment schedule was required, that Meso would not proceed to adjudication, or that it would withdraw the adjudication application; the ACL claims therefore failed. Claim 16 satisfied s 13(2) of the Act. Under s 11(1B), the statutory progress payment claimed by Meso became due and payable 20 business days after Claim 16 was made, notwithstanding that the documents required by cl 8.3(g) of the General Conditions did not accompany the claim. Clause 8.3(g) was disregarded under s 11(8), and if applicable would be void under s 34(2)(a). The s 17(2) notice was therefore not invalid on...

Court Disposition

Application challenging the decision of the adjudicator dismissed. Claim for misleading or deceptive conduct under the ACL also dismissed, as no relevant misrepresentation was made.

Orders

  • ['The proceedings should be dismissed with costs.' 'The parties were directed within 7 days to bring in Short Minutes of Order to give effect to the reasons.']