Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023] NSWCA 306

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Total Construction Pty Ltd v Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) [2023] NSWCA 306 Hearing dates: 7 December 2023 Date of orders: 14 December 2023 Decision date: 14 December 2023 Before: Meagher JA at [1]; Mitchelmore JA at [2]; Adamson JA at [41] Decision: (1) Appeal allowed with costs. (2) The parties are to file short minutes of order on or before 2 February 2024 for the making of any further orders necessary to give effect to the result on the appeal. Catchwords: BUILDING AND CONSTRUCTION — Payment claim requirements — Where alleged payment claim consisted of letter from solicitors and attached invoices — Where correspondence between attached invoices and earlier submitted payment claims — Where indebtedness asserted in letter — Whether payment claim within meaning of s 13(1) of Building and Construction Industry Security of Payment Act 1999 (NSW) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1 Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391 Coordinated Construction Company Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Ltd (2004) 61 NSWLR 515; [2004] NSWCA 393 Fernandes Constructions v Tahmoor Coal (trading as Centennial Coal) [2007] NSWSC 381 Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA 211 Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (In Liq) (2005) 64 NSWLR 462; [2005] NSWCA 409 Piety Constructions Pty Ltd v Megacrane Holdings Pty Ltd [2023] NSWSC 309 Category: Principal judgment Parties: Total Construction Pty Ltd (Appellant) Kennedy Civil Contracting Pty Ltd (subject to a Deed of Company Arrangement) (Respondent) Representation: Counsel: D S Weinberger (Appellant) A Greinke (Respondent)