BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706

Supreme Court New South Wales

Medium Neutral Citation: BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706 Hearing dates: 14 and 24 November 2022; further written submissions received 29 and 30 November, 1 December 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Adjudication determination quashed Catchwords: BUILDING AND CONSTRUCTION – service of payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) – where payment claim delivered to office of superintendent – where delivery to superintendent not effective service – where payment claim subsequently came to notice of respondent – where respondent served payment schedule asserting service of payment claim not effective – whether the provisions of the Act enlivened – whether respondent should be taken then to have been served – where claimant then served second payment claim – where adjudication proceeded on basis of that second payment claim BUILDING AND CONSTRUCTION – adjudication – whether adjudicator had jurisdiction – whether s 13(1C) of the Building and Construction Industry Security of Payment Act engaged – proper construction of s 13(1C) of the Act – whether s 13(1C) of the Act permits service of only one payment claim after termination of a construction contract – whether adjudicator failed to exercise jurisdiction – reasons given by adjudicator MISLEADING OR DECEPTIVE CONDUCT – whether s 18 of the Australian Consumer Law engaged – whether by service of its payment schedule plaintiff represented that payment claim not validly served – whether defendant relied on any such representation to make its decision not to proceed to adjudication based on that payment claim Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry Security of Payment Amendment Act 2018 (NSW) Competition and Consumer Act 2010 (Cth) – Schedule 2, Australian Consumer Law Corporations Act 2001 (Cth) Cases Cited: Clyde Bergemann v Varley Power [2011] NSWSC 1039 Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773; [2018] NSWCA 107 CPB Contractors Pty Limited v Heyday5 Pty Limited [2020] NSWSC 1625 Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited [2006] NSWCA 259 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Iskra v MMIR Pty Limited [2019] NSWCA 126 Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors (2006) 62 NSWLR 421; (2006) 196 FLR 388; [2006] NSWSC 13 Piety Constructions Pty Ltd v Hville FCP Pty Ltd [2022] NSWSC 1318 QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 Re Ricochet Pty Ltd; Ian Barron and Morwest Investments Pty Ltd as Trustee of the Morwest Trading Trust v Equity Trustee Executor and Agency Company Limited; Austore Limited and Azelia Pty Ltd (1993) FCR 229; [1993] FCA 99 Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 October 2018 Category: Principal judgment Parties: BCFK Holdings Pty Ltd (Plaintiff) Rork Projects Pty Ltd (First Defendant) Navid King (Second Defendant) Adjudicate Today Pty Ltd (Third Defendant) Representation: Counsel: D S Weinberger (Plaintiff) F Corsaro SC (First Defendant)