Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184

Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184

The defendant did not serve a valid payment schedule within the required time under the Building and Construction Industry Security of Payment Act 1999 (NSW); the arguments about improper service and contractual compliance constituted defences that should have been raised by way of payment schedule, and cannot be raised at this stage. Accordingly, the plaintiff is entitled to judgment for the claimed amount as a debt due under the Act.

Parties
Plaintiff: Sand Excavation Pty Ltd; Defendant: Nahas Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
21 March 2011
Procedural Posture
Principal Judgment / Judgment After Trial
Outcome
Judgment for the plaintiff
Legal Topics
Service of Documents, Building Contracts, Security of Payment
Evidence Procedure Contract Building and Construction Law Service of Documents Building Contracts Security of Payment

Case Brief

Summary, issues, holding and outcome

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Parties

Sand Excavation Pty Ltd

Plaintiff

Nahas Constructions Pty Ltd

Defendant

Procedural Posture

Principal Judgment / Judgment After Trial

Legal Issues

  1. 1 Whether payment schedule was validly served by the defendant within time under the Building and Construction Industry Security of Payment Act 1999 (NSW)
  2. 2 Whether service of the payment schedule was effective if not completely within the premises and/or not during office hours
  3. 3 Whether the contract specified a due date such that statutory relief under the Building and Construction Industry Security of Payment Act 1999 (NSW) was available

Ratio Decidendi

The defendant did not serve a valid payment schedule within the required time under the Building and Construction Industry Security of Payment Act 1999 (NSW); the arguments about improper service and contractual compliance constituted defences that should have been raised by way of payment schedule, and cannot be raised at this stage. Accordingly, the plaintiff is entitled to judgment for the claimed amount as a debt due under the Act.

Court Disposition

Judgment for the plaintiff

Orders

  • Judgment for the plaintiff against the defendant in the sum of $1,198,789.34
  • Defendant to pay the plaintiff's costs