Waco Kwikform Ltd v Complete Access Scaffolding (NSW) Pty Ltd [2020] NSWSC 1702

Waco Kwikform Ltd v Complete Access Scaffolding (NSW) Pty Ltd [2020] NSWSC 1702

Clause 4.1 did not expressly nominate or determine the date on which a progress payment claim may be made. It merely provided for when payment would be made if a claim was submitted by the twentieth day of the month and approved, leaving CAS to choose if and when to make claims. Accordingly s 8(2)(a) was not engaged; the reference date was determined under s 8(2)(b), and as it was common ground that a reference date existed on that basis, Waco's challenge to the adjudication determination failed.

Jurisdiction
Australia
Judgment Date
30 November 2020
Procedural Posture
Challenge to an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Summons; Ex Tempore Judgment
Outcome
Summons dismissed with costs; plaintiff to pay to the first defendant moneys paid into Court.
Legal Topics
['security of Payment' 'adjudication Determination' 'reference Date' 'progress Payment Claims' 'construction Contract Interpretation']
['building and Construction' 'equity Technology and Construction List'] ['security of Payment' 'adjudication Determination' 'reference Date' 'progress Payment Claims' 'construction Contract Interpretation']

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Procedural Posture

Challenge to an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Summons; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the adjudication determination should be quashed on the basis that the relevant payment claim was not valid because there was no reference date.' 'Whether clause 4.1 of the construction contract made express provision with respect to the date on which a claim for a progress payment may be made for the purpose of s 8(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW).']

Ratio Decidendi

Clause 4.1 did not expressly nominate or determine the date on which a progress payment claim may be made. It merely provided for when payment would be made if a claim was submitted by the twentieth day of the month and approved, leaving CAS to choose if and when to make claims. Accordingly s 8(2)(a) was not engaged; the reference date was determined under s 8(2)(b), and as it was common ground that a reference date existed on that basis, Waco's challenge to the adjudication determination failed.

Court Disposition

Summons dismissed with costs; plaintiff to pay to the first defendant moneys paid into Court.

Orders

  • ['The summons should be dismissed with costs.' 'The plaintiff pay out to the first defendant the moneys paid into Court following the commencement of these proceedings.']