Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA 211

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA 211 Hearing dates: 3 September 2021 Date of orders: 9 September 2021 Decision date: 09 September 2021 Before: Basten JA at [1]; Macfarlan JA at [31]; Emmett AJA at [33] Decision: (1) Allow the appeal and set aside order (2) made in the District Court on 30 April 2021 and order (2) entered on 17 May 2021. (2) Give judgment for the appellant in the sum of $175,190.55, being the sum of invoices JSA19293 and JS19794 and interest on those amounts. (3) Order that the respondent pay the appellant's costs of the appeal and of the proceedings in the District Court. Catchwords: BUILDING AND CONSTRUCTION – progress payment claim – payment schedule – email refusing payment until work completed – failure to say why payment withheld – other documents not incorporated – use of contextual material – Building and Construction Industry Security of Payment Act 1999 (NSW), s 14 Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 14, 17, 20 Cases Cited: Facade Treatment Engineering Pty Ltd (In liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; 313 FLR 163 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Style Timber Floor Pty Ltd v Krivosudsky (2019) 100 NSWLR 133; [2019] NSWCA 171 Category: Principal judgment Parties: Joye Group Pty Ltd (Appellant) Cemco Projects Pty Ltd (Respondent) Representation: Counsel: N Simpson / S Woodland (Appellant) R Thrift (Respondent)