BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392

District Court New South Wales

Medium Neutral Citation: BRP Industries Pty Ltd v Hynash Constructions Pty Ltd [2024] NSWDC 392 Hearing dates: 30 August 2024 Date of orders: 2 September 2024 Decision date: 02 September 2024 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the plaintiff against the defendant for $243,792.28. (2) Order the defendant to pay the plaintiff's costs of the proceedings, including the costs of and incidental to the Notice of Motion filed on 18 July 2024. Catchwords: CIVIL PROCEDURE – summary judgment – repudiation of subcontract – notice of default – payment claim – matter arising under the construction contract – pay now argue later Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 3, 4, 13, 14, 15 Cases Cited: Ampcontrol SWG Pty Ltd v Gujarat NRE Wonga Pty Ltd [2013] NSWSC 707 Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132 Kennedy Civil Contracting Pty Ltd (subject to Deed of Company Arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366 Category: Procedural rulings Parties: BRP Industries Pty Ltd (Plaintiff) Hynash Constructions Pty Ltd (Defendant) Representation: Counsel: M Sheldon (Plaintiff) D Byrne (Defendant)

Solicitors: Finlaysons (Plaintiff) Hamilton Locke (Defendant) File Number(s): 2024/61843

Judgment

Introduction 1. In early 2022 the defendant Hynash Constructions Pty Ltd (Hynash) was engaged by Bathurst Council as head contractor for the Bathurst Stormwater Harvesting #3198 Project (the Project). 2. In November 2022 Hynash invited the plaintiff BRP Industries Pty Ltd (BRP) to issue a quotation for the performance of certain under boring works as part of the Project. On 8 November 2022 BRP issued a quotation in the amount of $1,006,880 plus GST for work which comprised "mobilisation", "drill pilot hole, ream & insert supplied CN630mm pipe" and "demobilisation". 3. On 22 December 2022 Hynash and BRP executed a Subcontract Agreement (the Subcontract) for the performance of that work by BRP. On 10 October 2023 BRP issued a revised quotation in respect of the work which added an additional item. On 17 October 2023 Hynash accepted this revised quotation. The documentation referred to a proposed amended subcontract, but no such document was ever created or executed. 4. In the absence of an amended subcontract, the agreement between Hynash and BRP comprised the Subcontract, as varied by the revised quotation and the related purchase order. 5. On 30 October 2023 BRP commenced work under the Subcontract. 6. BRP performed work and issued invoices from time to time. 7. In January 2024 Hynash advised BRP that Hynash was involved in a contractual dispute with Bathurst Council and the works could not recommence. Hynash eventually instructed BRP that no further works were to be performed on the site. BRP accepted this repudiation of the Subcontract and on 5 March 2024 BRP sent Hynash a Notice of Default. Hynash did not respond to the Notice of Default or rectify the defaults complained of in the Notice. 8. On 13 March 2024 BRP terminated the Subcontract. 9. On 13 March 2024 BRP served on Hynash a payment claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Payment Act). That payment claim was for an amount of $234,286.80. 10. Hynash did not provide BRP with a payment schedule, in accordance with the Payment Act, within 10 days of service of the BRP claim. Nor did Hynash pay the amount sought in the payment schedule. 11. By a Statement of Claim filed in this court on 1 May 2024 BRP seeks judgment for $234,286.80 plus interest and costs. 12. Hynash filed a Defence in this court on 14 June 2024. By that document Hynash accepted that a debt was owed to BRP, but it rejected the validity of the debt amount claimed. 13. Hynash pleaded that it had paid $110,756.80 to BRP on 5 January 2023 which represented an agreed 10% establishment and mobilisation fee referenced in Schedule 2 of the Subcontract. The parties described this as an "upfront payment". 14. In its Defence Hynash accepted that it owed, as a debt due to BRP, the difference between $234,286.80 and $110,756.80. Hynash has not paid any money to BRP.