Cromer Excavations Pty Ltd v Cruz Concreting Services Pty Ltd [2011] NSWSC 51

Cromer Excavations Pty Ltd v Cruz Concreting Services Pty Ltd [2011] NSWSC 51

The plaintiff is entitled to summary judgment for the invoices as the defendant failed to serve any payment schedule, thereby precluding defences under the construction contract, and the giving of a notice under s 17(2) without making an adjudication application does not amount to an irrevocable election precluding court proceedings.

Parties
Plaintiff: Cromer Excavations Pty Ltd; First Defendant: Cruz Concreting Services Pty Ltd; Second Defendant: Jose da Silva
Jurisdiction
Australia
Judgment Date
17 February 2011
Procedural Posture
Civil (building and Construction) / Summary Judgment Application
Outcome
Summary judgment in favour of plaintiff (form of order to be settled)
Legal Topics
Progress Payments, Payment Schedule, Election Between Remedies, Guarantee Liability
Building and Construction Law Civil Procedure Progress Payments Payment Schedule Election Between Remedies Guarantee Liability

Case Brief

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Parties

Cromer Excavations Pty Ltd

Plaintiff

Cruz Concreting Services Pty Ltd

First Defendant

Jose da Silva

Second Defendant

Procedural Posture

Civil (building and Construction) / Summary Judgment Application

Legal Issues

  1. 1 Whether there was a construction contract between the parties
  2. 2 Whether invoices were properly served
  3. 3 Whether the plaintiff made an election to go to adjudication, precluding court proceedings

Ratio Decidendi

The plaintiff is entitled to summary judgment for the invoices as the defendant failed to serve any payment schedule, thereby precluding defences under the construction contract, and the giving of a notice under s 17(2) without making an adjudication application does not amount to an irrevocable election precluding court proceedings.

Court Disposition

Summary judgment in favour of plaintiff (form of order to be settled)

Orders

  • Parties to bring in Short Minutes of Order to reflect the reasons
  • Court will hear the parties on costs