A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd [2019] NSWSC 404

A-Tech Australia Pty Ltd v Top Pacific Construction Aust Pty Ltd [2019] NSWSC 404

ATA was entitled to pursue judgment notwithstanding the 7 December consent orders. The invoices sufficiently identified the construction work and claimed amounts and were valid payment claims under the Act. TPC received the claims, and no valid payment schedule was served within the time allowed: the 16 July email was too late for invoice 1037 and did not identify or respond sufficiently to the 10 July invoice. Any otherwise enforceable agreement preventing ATA from proceeding to judgment under the Act would in any event be nullified by s 34. ATA was therefore entitled to judgment, subject to the adjourned question of final orders and any stay application.

Jurisdiction
Australia
Judgment Date
12 April 2019
Procedural Posture
Application for Recovery of Claimed Amounts as a Debt Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing; Proceedings Adjourned for Entry of Final Orders and Any Stay Application
Outcome
ATA held entitled to judgment on its claim; proceedings adjourned for entry of final orders and hearing of any application by TPC for a stay.
Legal Topics
['security of Payment' 'payment Claims' 'payment Schedules' 'service by Email' 'cross Claims and Set Off' 'contracting Out' 'consent Orders' 'stay of Enforcement']
['building and Construction' 'construction Contracts' 'civil Procedure' 'equity Commercial List'] ['security of Payment' 'payment Claims' 'payment Schedules' 'service by Email' 'cross Claims and Set Off' 'contracting Out' 'consent Orders' 'stay of Enforcement']

Case Brief

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Procedural Posture

Application for Recovery of Claimed Amounts as a Debt Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing; Proceedings Adjourned for Entry of Final Orders and Any Stay Application

Legal Issues

  1. 1 ["Whether ATA's invoices were valid payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW)." 'Whether the payment claims were validly served on TPC, including by email or actual receipt.' 'Whether TPC served any valid payment schedule within the time allowed by the Act.' "Whether the 7 December 2018 consent orders or settlement prevented ATA from seeking judgment before determination of TPC's cross-claim." 'Whether any such agreement would be void under s 34 of the Act as contracting out of the Act.']

Ratio Decidendi

ATA was entitled to pursue judgment notwithstanding the 7 December consent orders. The invoices sufficiently identified the construction work and claimed amounts and were valid payment claims under the Act. TPC received the claims, and no valid payment schedule was served within the time allowed: the 16 July email was too late for invoice 1037 and did not identify or respond sufficiently to the 10 July invoice. Any otherwise enforceable agreement preventing ATA from proceeding to judgment under the Act would in any event be nullified by s 34. ATA was therefore entitled to judgment, subject to the adjourned question of final orders and any stay application.

Court Disposition

ATA held entitled to judgment on its claim; proceedings adjourned for entry of final orders and hearing of any application by TPC for a stay.

Orders

  • ['Adjourn the proceedings to a date to be fixed by arrangement with my Associate for the entry of final orders and the hearing of any application by the defendant for a stay.']