Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14

Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14

The upfront payment by Hynash to BRP was a matter arising under the construction contract and not a partial payment of the payment claim; therefore, s 15(4)(b)(ii) prohibits raising this deduction as a defence in court proceedings for payment claim recovery when no payment schedule was served, and leave to appeal is refused or appeal is dismissed.

Parties
Applicant: Hynash Constructions Pty Ltd; Respondent: BRP Industries Pty Ltd
Jurisdiction
Australia
Judgment Date
19 February 2025
Procedural Posture
Appeal / Decision on Application for Leave to Appeal/appeal
Outcome
Leave to appeal refused if required; otherwise appeal dismissed. Applicant to pay respondent's costs.
Legal Topics
Security of Payment, Defences Under Construction Contracts, Summary Judgment, Set Off
Construction Law Commercial Law Security of Payment Defences Under Construction Contracts Summary Judgment Set Off

Case Brief

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Parties

Hynash Constructions Pty Ltd

Applicant

BRP Industries Pty Ltd

Respondent

Procedural Posture

Appeal / Decision on Application for Leave to Appeal/appeal

Legal Issues

  1. 1 Whether upfront payment made under a construction contract may be deducted from a payment claim when respondent fails to serve a payment schedule
  2. 2 Whether defence relating to upfront payment constitutes a prohibited defence under s 15(4)(b)(ii) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

Ratio Decidendi

The upfront payment by Hynash to BRP was a matter arising under the construction contract and not a partial payment of the payment claim; therefore, s 15(4)(b)(ii) prohibits raising this deduction as a defence in court proceedings for payment claim recovery when no payment schedule was served, and leave to appeal is refused or appeal is dismissed.

Court Disposition

Leave to appeal refused if required; otherwise appeal dismissed. Applicant to pay respondent's costs.

Orders

  • To the extent required, refuse leave to appeal.
  • If leave is not required, dismiss the appeal.