EFI Construction Pty Ltd v Gee Ha Pty Ltd [2007] NSWLC 17

Local Court of New South Wales

CITATION: EFI Construction Pty Ltd v Gee Ha Pty Ltd [2007] NSWLC 17 JURISDICTION: Civil PARTIES: EFI Construction Pty Ltd Gee Ha Pty Ltd FILE NUMBER: 5611/06 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 06/15/2007 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Building & engineering Contracts -- Progress claims & payments – Whether defendant liable for "unpaid portion" of progress claim – Whether moneys set aside as "deposit" or appropriated by plaintiff – Whether credit note extinguishes original debt ab initio LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 ss. 3, 4, 5, 7, 8, 9, 11, 12, 13, 14 & 15. Airservices Australia v Ferrier (1996) 137 ALR 609 CASES CITED: Conlan (Liquidator of Oakleigh Acquisitions Pty Ltd) v Registrar of Titles [2001] WASC 201 Re Global Finance Group Pty Ltd; ex p. Read [2002] WASC 63 Healey v Commonwealth Bank of Australia (1998) NSWSC 678 Mr T.J. Davie (Counsel for Plaintiff) The Law Partnership (Solicitors for Plaintiff) REPRESENTATION:

Mr S. Jacobs (Counsel for Defendant) Gadens (Solicitors for Defendant) ORDERS: 1. Verdict for defendant and judgment accordingly.; 2. Costs reserved. Parties to have liberty to apply.

Judgment

1. The plaintiff, EFI Constructions Pty Ltd, is a construction company that undertook work for the defendant company, Gee Ha Pty Ltd, on a project at Callala Beach. The parties signed a written contract in May 2004. That contract was a "construction contract" for the purposes of the Building and Construction Industry Security of Payment Act 1999. The Act therefore applied to the contract. Section 7. The plaintiff claims a sum of $54,447.27 in respect of a progress claim made under the Act. The primary issue in the case is whether there remains an unpaid portion of the claim.