Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd [2023] NSWSC 723

Supreme Court New South Wales

Medium Neutral Citation: Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd [2023] NSWSC 723 Hearing dates: 22 June 2023, last submissions 23 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Jurisdiction: Equity - Technology and Construction List Before: Rees J Decision: Permanent injunction and declaratory relief. Catchwords: SECURITY OF PAYMENT ACT– construction contract terminated – subcontractor serves payment claim – contractor serves payment schedule disputing validity of payment claim – subcontractor serves another payment claim without withdrawing the earlier claim – s13(1C), Building and Construction Industry Security of Payment Act 1999 – contractor now says earlier payment claim was valid – whether contractor can 'approbate and reprobate' – s13(1C) applies to preclude later payment claim. CONTRACT – contractor purports to terminate contract – subcontractor elects to affirm – contractor reasserts that contract is terminated – subcontractor elects to terminate – whether termination effective – is later repudiation "distinguishable" from earlier breach – GEC Marconi v BHP – principles at [25]-[32] – later breach need not be breach of different obligation or breach of same obligation by different means – sufficient if later breach is temporally distinguishable, occurring on a separation occasion. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13(1C), 13(2) Cases Cited: Ailakis v Olivero (No 2) [2014] WASCA 127; (2014) 100 ACSR 524 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 406 ALR 632; [2022] HCA 38 Autodesc Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706 Carr v J A Berriman Pty Ltd (1953) 89 CLR 327; [1953] HCA 31 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 50 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Larking v Great Western (Nepean) Gravel Ltd (1940) 64 CLR 221; [1940] HCA 37 NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd [2013] NSWSC 842 Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444; [1976] HCA 21 Rojo Building Pty Ltd v Jillcris Pty Ltd [2006] NSWSC 309 The New South Wales Netball Association Ltd v Probuild Construction (Aust) Pty Ltd [2015] NSWSC 1339 Category: Principal judgment Parties: Taylor Construction Group Pty Ltd (Plaintiff) Adcon Structural Group Pty Ltd (Defendant) Representation: Counsel: Mr D Byrne (Plaintiff) Mr F Hicks SC / Ms D Levi (Defendant