Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd [2024] NSWSC 1244

Supreme Court New South Wales

Medium Neutral Citation: Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd [2024] NSWSC 1244 Hearing dates: 25 September 2024; further written submissions 30 September 2024 Date of orders: 4 October 2024 Decision date: 04 October 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Payment claims delivered on 21 February 2024; payment schedules not delivered within 10 business days; defendant liable to pay claimed amount Catchwords: AGENCY — authority of agent — actual authority – where defendant's subcontracts manager's Job Description stated responsibilities to "manage", "process" and "receive" payment claims – whether defendant's subcontracts manager had actual authority to receive plaintiff's payment claims on behalf of the defendant AGENCY — authority of agent — apparent authority – where defendant's former subcontracts manager represented to employee of the plaintiff that he had authority to receive payment claims on behalf of the defendant – where new subcontracts manager played same role as former subcontracts manager – whether defendant's subcontracts manager had apparent authority to receive plaintiff's payment claims on behalf of the defendant BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claims – where plaintiff and defendant were parties to construction contracts – where plaintiff's payment claims were from time to time addressed to defendant's nominated representative and defendant's subcontracts manager via agreed electronic document management system – whether payment claims solely addressed to defendant's subcontracts manager via agreed electronic document management system were effectively served – whether proper construction of the contracts required plaintiff to serve payment claims on defendant's nominated representative BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claims – where plaintiff's employee sent updated payment claims to defendant's subcontracts manager via agreed electronic document management system – whether those payment claims may be taken to have been served on that day, or the following day when defendant acknowledged receipt BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – withdrawal of payment claims – where plaintiff's earlier payment claims were withdrawn at defendant's suggestion – payment claims withdrawn by agreement CONTRACTS — construction — where on plaintiff's construction of the contracts certain provisions would be void by reason of Building and Construction Industry Security of Payment Act 1999 (NSW), s 34 – where relevant contractual provisions are nonetheless available for the purpose of construing what the parties intended by the words used – contracts do not require plaintiff to serve payment claims on defendant's nominated representative Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Electronic Transactions Act 2000 (NSW) Evidence Act 1995 (NSW) Cases Cited: Argyle Building Services Pty Ltd v Dalanex Pty Ltd (No 2) [2022] VSC 452 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; [1975] HCA 49 Demex Pty Ltd v John Holland Pty Ltd [2022] QSC 259 Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd [2019] NSWSC 407 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11 NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd [2013] NSWSC 842 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146; [1990] HCA 32 Oliveri Legal Pty Ltd t/as Oliveri Lawyers v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Rodrigues v customOz Services Pty Ltd [2023] NSWSC 379 Sass Developments Pty Ltd v Bivoltsis [2024] VCC 798 Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd [2023] NSWSC 723 Category: Principal judgment Parties: Fredon Infrastructure Pty Limited (Plaintiff) Hitachi Rail GTS Australia Pty Ltd (Defendant) Representation: Counsel: D Hume (Plaintiff) F P Hicks SC / D Byrne (Defendant)