Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259

Falgat Constructions Pty. Limited v. Equity Australia Corporation Pty. Limited [2006] NSWCA 259

The payment schedule was provided to Falgat within time because s.109X of the Corporations Act 2001 (Cth) applied to the provision of a payment schedule to a corporation and service or provision was effected when the schedule was delivered to Falgat's registered office during business hours on 22 October 2004. Falgat failed to establish that the schedule was not provided by 27 October 2004, and the late proposed estoppel amendment was properly refused because the estoppel case was very weak, required further evidence and argument, and would prejudice Equity.

Jurisdiction
Australia
Judgment Date
19 September 2006
Procedural Posture
Appeal Concerning Proceedings to Recover a Claimed Amount as a Debt Under Ss.14 and 15 of the Building and Construction Industry Security of Payment Act 1999 (nsw). / Court of Appeal; Leave to Appeal Granted to Regularise the Proceeding and the Appeal Dismissed.
Outcome
Appeal dismissed.
Legal Topics
['progress Payments' 'payment Claims' 'payment Schedules' 'service and Provision of Documents on Corporations' 'postal Service' 'estoppel' 'leave to Amend Pleadings' 'adjudication Applications']
['building and Construction' 'security of Payment' 'corporations' 'statutory Interpretation' 'civil Procedure'] ['progress Payments' 'payment Claims' 'payment Schedules' 'service and Provision of Documents on Corporations' 'postal Service' 'estoppel' 'leave to Amend Pleadings' 'adjudication Applications']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning Proceedings to Recover a Claimed Amount as a Debt Under Ss.14 and 15 of the Building and Construction Industry Security of Payment Act 1999 (nsw). / Court of Appeal; Leave to Appeal Granted to Regularise the Proceeding and the Appeal Dismissed.

Legal Issues

  1. 1 ['Whether Equity provided a payment schedule to Falgat within the time required by s.14(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether s.109X of the Corporations Act 2001 (Cth) applies to the provision of a payment schedule to a corporation where the Security of Payment Act uses the word "provide" rather than "serve".' 'Whether s.29 of the Acts Interpretation Act 1901 (Cth) and s.160 of the Evidence Act 1995 (NSW) affected the time at which postal service or provision was effected.' 'Whether s.31 of the Building and Construction Industry Security of Payment Act 1999 (NSW) applies to provision of payment schedules as well as service of notices.' 'Whether the primary judge erred in refusing Falgat leave to amend to plead estoppel.' 'Whether successive payment claims claiming the same amount could be served after cessation of work and before the twelve month limit.']

Ratio Decidendi

The payment schedule was provided to Falgat within time because s.109X of the Corporations Act 2001 (Cth) applied to the provision of a payment schedule to a corporation and service or provision was effected when the schedule was delivered to Falgat's registered office during business hours on 22 October 2004. Falgat failed to establish that the schedule was not provided by 27 October 2004, and the late proposed estoppel amendment was properly refused because the estoppel case was very weak, required further evidence and argument, and would prejudice Equity.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "Falgat to pay Equity's costs of the application for leave and appeal."]