J C Butko Engineering Pty Ltd v Talis Civil Pty Ltd [2021] NSWDC 735

J C Butko Engineering Pty Ltd v Talis Civil Pty Ltd [2021] NSWDC 735

The emails of 3 and 7 August 2020 did not constitute a payment schedule for Payment Claim 13 because they did not identify Payment Claim 13 and did not indicate the amount Talis Civil proposed to pay; references to variations, back charges, prior conversations, or an email trail could not supply the required statutory identification. In contrast, the 9 November 2020 email concerning Payment Claim 14 identified that claim, indicated nil payment, and gave rational reasons by reference to outstanding variation issues and back charges which exceeded Payment Claim 14, so there was no basis for summary judgment on Payment Claim 14.

Jurisdiction
Australia
Judgment Date
29 October 2021
Procedural Posture
Civil Building and Construction Security of Payment Proceedings / Plaintiff's Notice of Motion for Summary Judgment and Other Orders
Outcome
Judgment entered for the plaintiff for Payment Claim 13; summary judgment refused in respect of Payment Claim 14; specified parts of the defence struck out by consent; defendant ordered to pay costs to date including costs of the motion.
Legal Topics
['security of Payment' 'payment Claim' 'payment Schedule' 'summary Judgment' 'strike Out' 'costs' 'interest']
['building and Construction' 'civil Procedure'] ['security of Payment' 'payment Claim' 'payment Schedule' 'summary Judgment' 'strike Out' 'costs' 'interest']

Case Brief

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Procedural Posture

Civil Building and Construction Security of Payment Proceedings / Plaintiff's Notice of Motion for Summary Judgment and Other Orders

Legal Issues

  1. 1 ['Whether Talis Civil served a payment schedule in respect of Payment Claim 13.' 'Whether Talis Civil served a payment schedule in respect of Payment Claim 14.' 'Whether the emails relied on identified the relevant payment claim, indicated the scheduled amount, and gave reasons for withholding payment under s 14 of the Building and Construction Industry Security of Payment Act 1999.' 'Whether JC Butko was entitled to summary judgment.']

Ratio Decidendi

The emails of 3 and 7 August 2020 did not constitute a payment schedule for Payment Claim 13 because they did not identify Payment Claim 13 and did not indicate the amount Talis Civil proposed to pay; references to variations, back charges, prior conversations, or an email trail could not supply the required statutory identification. In contrast, the 9 November 2020 email concerning Payment Claim 14 identified that claim, indicated nil payment, and gave rational reasons by reference to outstanding variation issues and back charges which exceeded Payment Claim 14, so there was no basis for summary judgment on Payment Claim 14.

Court Disposition

Judgment entered for the plaintiff for Payment Claim 13; summary judgment refused in respect of Payment Claim 14; specified parts of the defence struck out by consent; defendant ordered to pay costs to date including costs of the motion.

Orders

  • ['Judgment for the plaintiff in the sum of $351,638.92 (including interest from 28 August 2020 in the sum of $16,283.02).' 'By consent, make orders in accordance with order 3 of the amended notice of motion (filed 28 April 2021) striking out paragraph 7(c), paragraph 7(d), paragraph 8(e)(i) the words "(which is not...