Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337

Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337

An assignor who has completed an assignment of the underlying contractual debt and expressly states in the payment claim that it is no longer the creditor does not meet the requirement in s 13(1) of the Act to be a person who 'claims to be entitled' to a progress payment. As such, the payment claim is invalid, and any subsequent adjudication determination based on it is also invalid.

Jurisdiction
Australia
Judgment Date
18 December 2017
Procedural Posture
Civil Appeal / Court of Appeal (leave to Appeal, Appeal Determination)
Outcome
Appeal allowed; adjudication determination quashed; orders varied; costs ordered against the first respondent.
Legal Topics
['progress Payments' 'assignment of Debt' 'payment Claims' 'adjudication Determination' 'statutory Interpretation']
['building and Construction Law' 'contract Law'] ['progress Payments' 'assignment of Debt' 'payment Claims' 'adjudication Determination' 'statutory Interpretation']

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Procedural Posture

Civil Appeal / Court of Appeal (leave to Appeal, Appeal Determination)

Legal Issues

  1. 1 ['Whether payment claims served by Electrical Energy Pty Ltd were valid under s 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) when the underlying debts had been assigned' "Whether an assignor can be a 'person who claims to be entitled to a progress payment' under s 13(1) after assignment"]

Ratio Decidendi

An assignor who has completed an assignment of the underlying contractual debt and expressly states in the payment claim that it is no longer the creditor does not meet the requirement in s 13(1) of the Act to be a person who 'claims to be entitled' to a progress payment. As such, the payment claim is invalid, and any subsequent adjudication determination based on it is also invalid.

Court Disposition

Appeal allowed; adjudication determination quashed; orders varied; costs ordered against the first respondent.

Orders

  • ['Grant leave to appeal from orders 2(a) and 3 made on 28 September 2017.' 'Direct that the appellant Quickway file a notice of appeal in the form of the draft notice of appeal but confined to the Canterbury determination.' 'Appeal allowed.' 'Quash the adjudication determination of the second respondent dated 28...