Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408

Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408

Payment claim 11 was served on Remo on 19 July 2008 because the evidence of Mr Zerilli and the fax transmission report marked OK supported an unrebutted inference that the claim was transmitted to and received into the memory of Remo's fax machine at its ordinary place of business. Receipt did not require printing out or attention by Remo staff, and service by facsimile under s 31(1)(c) was not confined to normal office hours. The Court was not satisfied that Remo gave a payment schedule to Mr Zerilli on 4 August 2008. Zebicon was therefore entitled to judgment.

Jurisdiction
Australia
Judgment Date
24 December 2008
Procedural Posture
Building and Construction Payment Claim Dispute / Preliminary Decision; Ex Tempore Judgment
Outcome
Zebicon is entitled to judgment and to its costs of the proceedings.
Legal Topics
['security of Payment' 'payment Claim' 'payment Schedule' 'service by Facsimile' 'receipt of Notices' 'fax Transmission Evidence']
['building and Construction' 'civil Procedure' 'evidence'] ['security of Payment' 'payment Claim' 'payment Schedule' 'service by Facsimile' 'receipt of Notices' 'fax Transmission Evidence']

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Procedural Posture

Building and Construction Payment Claim Dispute / Preliminary Decision; Ex Tempore Judgment

Legal Issues

  1. 1 ['What was the precise date on which Zebicon served or first served payment claim 11.' 'What was the precise date on which Remo provided or first provided its payment schedule in response.' "Whether a payment claim sent by fax was received where the recipient's fax machine was faulty and no printout was found." 'Whether Remo provided a payment schedule personally to Mr Zerilli on 4 August 2008.']

Ratio Decidendi

Payment claim 11 was served on Remo on 19 July 2008 because the evidence of Mr Zerilli and the fax transmission report marked OK supported an unrebutted inference that the claim was transmitted to and received into the memory of Remo's fax machine at its ordinary place of business. Receipt did not require printing out or attention by Remo staff, and service by facsimile under s 31(1)(c) was not confined to normal office hours. The Court was not satisfied that Remo gave a payment schedule to Mr Zerilli on 4 August 2008. Zebicon was therefore entitled to judgment.

Court Disposition

Zebicon is entitled to judgment and to its costs of the proceedings.

Orders

  • ['The parties are directed to bring in short minutes of order in the course of today, including an agreed calculation of interest and giving credit for any payments that may have been made.' 'The exhibits are to be dealt with in accordance with the rules.']