Draybi One Pty Ltd v Norms Carpentry & Joinery Pty Ltd [2013] NSWSC 1676

Draybi One Pty Ltd v Norms Carpentry & Joinery Pty Ltd [2013] NSWSC 1676

The contract provision concerning progress payments did not determine a date on which a claim for a progress payment could be made under s 8(2)(a). If s 8(2)(b) applied, the only possible reference date was the last day of the month in which Norms last did work, being July 2012 or August 2012, and no reference date arose after 31 August 2012. Because the Second Payment Claim was identical to the First Payment Claim, claimed the same amount for the same work, and related to the same reference date, s 13(5) precluded its service.

Jurisdiction
Australia
Judgment Date
14 November 2013
Procedural Posture
Proceedings Seeking a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 Is Void for Want of Jurisdiction / Determination of Separate Questions Pursuant to R 28.2 of the Uniform Civil Procedure Rules 2005
Outcome
Separate questions answered: (1) No; (2) No; (3) Yes.
Legal Topics
['separate Questions' 'building and Construction Industry Security of Payment Act 1999' 'reference Date' 'payment Claim' 'adjudication Jurisdiction']
['practice and Procedure' 'building and Construction'] ['separate Questions' 'building and Construction Industry Security of Payment Act 1999' 'reference Date' 'payment Claim' 'adjudication Jurisdiction']

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Procedural Posture

Proceedings Seeking a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 Is Void for Want of Jurisdiction / Determination of Separate Questions Pursuant to R 28.2 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ['Whether, on the proper construction of the contract, a reference date after 31 August 2012 was determined under the contract as provided in s 8(2)(a) of the Building and Construction Industry Security of Payment Act 1999.' 'If the contract made no express provision with respect to reference dates such that s 8(2)(b) applied, whether there was a reference date after 31 August 2012.' 'Whether Norms Carpentry & Joinery Pty Limited was precluded under s 13(5) of the Building and Construction Industry Security of Payment Act 1999 from serving its payment claim dated 23 July 2013.']

Ratio Decidendi

The contract provision concerning progress payments did not determine a date on which a claim for a progress payment could be made under s 8(2)(a). If s 8(2)(b) applied, the only possible reference date was the last day of the month in which Norms last did work, being July 2012 or August 2012, and no reference date arose after 31 August 2012. Because the Second Payment Claim was identical to the First Payment Claim, claimed the same amount for the same work, and related to the same reference date, s 13(5) precluded its service.

Court Disposition

Separate questions answered: (1) No; (2) No; (3) Yes.

Orders

  • ['Question 1 answered: No.' 'Question 2 answered: No.' 'Question 3 answered: Yes.' 'The Court will hear submissions as to the future conduct of the case.']