Illawarra Retirement Trust v Denham Constructions Pty Ltd [2015] NSWSC 823

Illawarra Retirement Trust v Denham Constructions Pty Ltd [2015] NSWSC 823

Although the Notice of Termination, construed by itself, provided for termination to occur at the conclusion of 28 May 2015, the parties subsequently agreed that termination would not take effect until the end of 29 May 2015. Because 29 May 2015 was the last Business Day in May, it became a reference date under the contract and the defendant was able to serve Progress Claim No. 26 using that reference date. The inclusion of the $876,080 "cash held" item did not invalidate the payment claim because it was tolerably clear that the amount was included as part of the monetary accounting exercise between the parties, not as a claim in respect of unidentified construction work or as a separate...

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Summons Seeking Interlocutory and Final Injunctive Relief Restraining the Defendant From Acting Upon Payment Claims, Including by Applying for Adjudication Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Early Final Hearing
Outcome
Summons dismissed; costs reserved.
Legal Topics
['validity of Payment Claim' 'reference Date' 'termination for Convenience' 'construction of Notice of Termination' 'security Called Upon by Principal' 'adjudication']
['building and Construction' 'security of Payment' 'contract Law'] ['validity of Payment Claim' 'reference Date' 'termination for Convenience' 'construction of Notice of Termination' 'security Called Upon by Principal' 'adjudication']

Case Brief

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Procedural Posture

Summons Seeking Interlocutory and Final Injunctive Relief Restraining the Defendant From Acting Upon Payment Claims, Including by Applying for Adjudication Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Early Final Hearing

Legal Issues

  1. 1 ['Whether the contract had been terminated by the end of 28 May 2015 so that the reference date which otherwise would have arisen on 29 May 2015 did not arise' 'Whether the parties subsequently agreed that termination would not take effect until the end of 29 May 2015' 'Whether inclusion in Progress Claim No. 26 of the item described as "cash held" in the sum of $876,080 invalidated the payment claim in whole or in part']

Ratio Decidendi

Although the Notice of Termination, construed by itself, provided for termination to occur at the conclusion of 28 May 2015, the parties subsequently agreed that termination would not take effect until the end of 29 May 2015. Because 29 May 2015 was the last Business Day in May, it became a reference date under the contract and the defendant was able to serve Progress Claim No. 26 using that reference date. The inclusion of the $876,080 "cash held" item did not invalidate the payment claim because it was tolerably clear that the amount was included as part of the monetary accounting exercise between the parties, not as a claim in respect of unidentified construction work or as a separate...

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['Summons dismissed.' 'Costs reserved.']