BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392

BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392

Hynash failed to provide a payment schedule and failed to pay the claimed amount. Its asserted set-off or credit for the upfront payment arose under the Subcontract, because the upfront payment was provided for in Schedule 2 and any right to recover overpayment after termination was provided for by cl 10.4. Section 15(4)(b)(ii) therefore prevented Hynash from raising that defence in these proceedings, so BRP was entitled to summary judgment for the full claimed amount plus agreed interest.

Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Civil Proceedings to Recover an Unpaid Payment Claim as a Debt Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Notice of Motion for Summary Judgment Filed on 18 July 2024
Outcome
Summary judgment for the plaintiff against the defendant for $243,792.28, with costs.
Legal Topics
['summary Judgment' 'payment Claim' 'failure to Provide Payment Schedule' 'set Off' 'matters Arising Under the Construction Contract' 'pay Now, Argue Later']
['civil Procedure' 'building and Construction' 'security of Payment'] ['summary Judgment' 'payment Claim' 'failure to Provide Payment Schedule' 'set Off' 'matters Arising Under the Construction Contract' 'pay Now, Argue Later']

Case Brief

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Procedural Posture

Civil Proceedings to Recover an Unpaid Payment Claim as a Debt Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Notice of Motion for Summary Judgment Filed on 18 July 2024

Legal Issues

  1. 1 ['Whether BRP was entitled to summary judgment for the claimed amount under ss 14 and 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether Hynash could reduce the claimed amount by relying on a set-off or credit for the balance of an upfront establishment and mobilisation payment.' 'Whether the asserted set-off or credit was a defence in relation to matters arising under the construction contract within s 15(4)(b)(ii) of the Payment Act.']

Ratio Decidendi

Hynash failed to provide a payment schedule and failed to pay the claimed amount. Its asserted set-off or credit for the upfront payment arose under the Subcontract, because the upfront payment was provided for in Schedule 2 and any right to recover overpayment after termination was provided for by cl 10.4. Section 15(4)(b)(ii) therefore prevented Hynash from raising that defence in these proceedings, so BRP was entitled to summary judgment for the full claimed amount plus agreed interest.

Court Disposition

Summary judgment for the plaintiff against the defendant for $243,792.28, with costs.

Orders

  • ['Judgment for the plaintiff against the defendant for $243,792.28.' "Order the defendant to pay the plaintiff's costs of the proceedings, including the costs of and incidental to the Notice of Motion filed on 18 July 2024."]