Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWSC 880

Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWSC 880

A claimant does not make an election between the statutory alternatives of court proceedings and adjudication application under the Building & Construction Industry Security of Payment Act 1999 merely by serving notice of intention to make an adjudication application; unless and until an adjudication application is...

Source-derived case information.

Parties
Plaintiff: Rojo Building Pty Limited; Defendant: Jillcris Pty Limited
Jurisdiction
Australia
Judgment Date
12 July 2007
Procedural Posture
Civil / Trial Judgment
Outcome
Plaintiff's claim succeeds; judgment for plaintiff
Legal Topics
Security of Payment, Progress Payments, Statutory Remedies, Authority to Sign Payment Claims, Payment Schedules, Adjudication Application, Election Between Remedies
Building and Construction Law Civil Procedure Security of Payment Progress Payments Statutory Remedies Authority to Sign Payment Claims Payment Schedules Adjudication Application +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Rojo Building Pty Limited

Plaintiff

Jillcris Pty Limited

Defendant

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether authority of solicitor to sign payment claim is sufficient
  2. 2 Whether the failure by defendant to serve a payment schedule within statutory timeframes entitles claimant to recover the claimed amount as a debt
  3. 3 Whether serving notice of intention to make adjudication application constitutes an election precluding curial proceedings

Ratio Decidendi

A claimant does not make an election between the statutory alternatives of court proceedings and adjudication application under the Building & Construction Industry Security of Payment Act 1999 merely by serving notice of intention to make an adjudication application; unless and until an adjudication application is actually made, the right to recover the unpaid claimed amount as a debt in court remains extant. The notice is only a procedural precondition and does not commit the claimant to the adjudication pathway. Rojo was, therefore, entitled to sue for the claimed amount despite having served a s 17(2)(a) notice.

Court Disposition

Plaintiff's claim succeeds; judgment for plaintiff

Orders

  • Direct entry of judgment for the plaintiff against the defendant in the sum of $251,537.09 together with interest on that sum from 2 December 2005.
  • Parties to bring in an agreed calculation of the amount of the judgment, including interest, within 7 days.