Isis Projects Pty Limited v Clarence Street Limited [2004] NSWSC 222

Isis Projects Pty Limited v Clarence Street Limited [2004] NSWSC 222

The respondent raised a triable issue as to the construction of the contract regarding entitlement to progress payments after practical completion but before the final payment claim. The approach taken by the respondent could not be said to be so clearly untenable as to justify summary judgment. The claimant must...

Source-derived case information.

Parties
Plaintiff: Isis Projects Pty Limited; Defendant: Clarence Street Limited
Jurisdiction
Australia
Judgment Date
29 March 2004
Procedural Posture
Appeal / Appeal From Master to a Judge, Determination of Summary Judgment Application
Outcome
Appeal dismissed, summary judgment refused, parties to bring in short minutes of order.
Legal Topics
Security of Payment, Summary Judgment, Statutory Construction
Contract Building and Construction Law Security of Payment Summary Judgment Statutory Construction

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Parties

Isis Projects Pty Limited

Plaintiff

Clarence Street Limited

Defendant

Procedural Posture

Appeal / Appeal From Master to a Judge, Determination of Summary Judgment Application

Legal Issues

  1. 1 Proper construction and application of amendments to Building and Construction Industry Security of Payment Act 1999 (NSW)
  2. 2 Whether recipient of a payment claim must set out any objection in a payment schedule or be liable to pay the claimed amount under the Act
  3. 3 Whether summary judgment should be granted or a triable issue exists as to entitlement to progress payments post practical completion

Ratio Decidendi

The respondent raised a triable issue as to the construction of the contract regarding entitlement to progress payments after practical completion but before the final payment claim. The approach taken by the respondent could not be said to be so clearly untenable as to justify summary judgment. The claimant must strictly satisfy the preconditions under the Act, including establishing the due date for payment, to obtain summary judgment. The appeal is dismissed and summary judgment refused.

Court Disposition

Appeal dismissed, summary judgment refused, parties to bring in short minutes of order.

Orders

  • Appeal to be dismissed on the bringing in of short minutes of order.