Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232

Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232

The 18 May 2004 letter was not 'provided' to BMC and thus not a payment schedule within the meaning of the Act; BMC is entitled to judgment for the claimed amount as no payment schedule was duly served within statutory time.

Source-derived case information.

Parties
Plaintiff: Barclay Mowlem Construction Limited; Defendant: Tesrol Walsh Bay Pty Limited
Jurisdiction
Australia
Judgment Date
09 December 2004
Procedural Posture
Building and Construction Contract Dispute / Final Judgment After Contested Hearing
Outcome
Judgment for the plaintiff
Legal Topics
Security of Payment, Payment Claims and Payment Schedules, Service of Documents, Statutory Interpretation, Estoppel
Building and Construction Law Security of Payment Payment Claims and Payment Schedules Service of Documents Statutory Interpretation Estoppel

Source-derived case record

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Parties

Barclay Mowlem Construction Limited

Plaintiff

Tesrol Walsh Bay Pty Limited

Defendant

Procedural Posture

Building and Construction Contract Dispute / Final Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the letter dated 18 May 2004 was sufficient in law to be a payment schedule under s 14 of the Building and Construction Industry Security of Payment Act 1999 (NSW)
  2. 2 Whether the letter was 'provided' to the claimant as required by the Act
  3. 3 Whether an estoppel arises to prevent the claimant from asserting that a payment schedule was not provided

Ratio Decidendi

The 18 May 2004 letter was not 'provided' to BMC and thus not a payment schedule within the meaning of the Act; BMC is entitled to judgment for the claimed amount as no payment schedule was duly served within statutory time.

Court Disposition

Judgment for the plaintiff

Orders

  • Judgment in the sum of $1,111,923 plus interest
  • Short minutes of order to be brought in within 7 days