NC Refractories Pty Ltd -v- Consultant Bricklaying Pty Ltd [2013] NSWSC 842

NC Refractories Pty Ltd -v- Consultant Bricklaying Pty Ltd [2013] NSWSC 842

The revised invoice was made under the original verbal construction contract, which had been varied rather than discharged by the email exchange; the obligation to pay remained in respect of work carried out under that contract. The first invoice was, by necessary implication, withdrawn when the plaintiff offered...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
20 June 2013
Procedural Posture
Proceedings Seeking an Order Quashing an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Further Amended Summons Filed 13 May 2013; Principal Judgment
Outcome
Proceedings dismissed. Plaintiff to pay first defendant's costs.
Legal Topics
['building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'construction Contract' 'reference Date' 'adjudication Determination' 'natural Justice' 'defective Work' 'prerogative Relief']
['building and Construction' 'equity' 'administrative Law'] ['building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'construction Contract' 'reference Date' 'adjudication Determination' 'natural Justice' 'defective Work' 'prerogative Relief']

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Procedural Posture

Proceedings Seeking an Order Quashing an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Further Amended Summons Filed 13 May 2013; Principal Judgment

Legal Issues

  1. 1 ['Whether the payment claim was based on a construction contract as required by s 8(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the second invoice was an impermissible second payment claim for the same reference date under s 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether the adjudicator failed to deal with the plaintiff's submission that the work was defective and of nil value, such that natural justice was denied."]

Ratio Decidendi

The revised invoice was made under the original verbal construction contract, which had been varied rather than discharged by the email exchange; the obligation to pay remained in respect of work carried out under that contract. The first invoice was, by necessary implication, withdrawn when the plaintiff offered different rates and the first defendant accepted by issuing the second invoice, so there was no contravention of s 13(5). The adjudicator considered the defective work submission, rejected the plaintiff's nil-value position on the material before him, and valued the claim by reference to the hours, agreed reduced rates and expenses, so no denial of natural justice was established.

Court Disposition

Proceedings dismissed. Plaintiff to pay first defendant's costs.

Orders

  • ['Proceedings dismissed.' "The plaintiff is to pay the first defendant's costs." 'The Exhibits are to be returned.']