East End Projects Pty Ltd v GJ Building and Contracting Pty Ltd [2020] NSWSC 819

East End Projects Pty Ltd v GJ Building and Contracting Pty Ltd [2020] NSWSC 819

The requirement that GJBC serve a draft progress claim on or before the 25th day of the month meant that, if it failed to do so, no reference date arose and it lost the right to make a progress claim for that month. That contingency seriously restricted the operation of s 8 of the Act and was not merely facilitative. The Contract therefore did not identify a valid date on which a progress payment claim could be made, so a statutory reference date arose under s 8(2), and East End was not entitled to the declaration or injunction sought.

Jurisdiction
Australia
Judgment Date
29 June 2020
Procedural Posture
Summons Seeking Declaratory and Injunctive Relief Concerning a Payment Claim Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment
Outcome
Summons dismissed with costs.
Legal Topics
['progress Payments' 'payment Claims' 'reference Dates' 'validity of Contractual Provisions Restricting the Operation of the Building & Construction Industry Security of Payment Act 1999 (nsw)']
['building and Construction' 'equity Commercial List'] ['progress Payments' 'payment Claims' 'reference Dates' 'validity of Contractual Provisions Restricting the Operation of the Building & Construction Industry Security of Payment Act 1999 (nsw)']

Case Brief

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Procedural Posture

Summons Seeking Declaratory and Injunctive Relief Concerning a Payment Claim Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment

Legal Issues

  1. 1 ["Whether a reference date had arisen in respect of GJBC's payment claim dated 28 May 2020 when it was served." 'Whether the contractual mechanism requiring a draft progress claim by the 25th day of the month was void under s 34 of the Building & Construction Industry Security of Payment Act 1999 (NSW) because it restricted the operation of the Act.' 'Whether the absence of a draft progress claim meant that no relevant reference date had arisen under the Contract.']

Ratio Decidendi

The requirement that GJBC serve a draft progress claim on or before the 25th day of the month meant that, if it failed to do so, no reference date arose and it lost the right to make a progress claim for that month. That contingency seriously restricted the operation of s 8 of the Act and was not merely facilitative. The Contract therefore did not identify a valid date on which a progress payment claim could be made, so a statutory reference date arose under s 8(2), and East End was not entitled to the declaration or injunction sought.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Summons be dismissed with costs.']