Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238

New South Wales Court of Appeal

CITATION : Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 FILE NUMBER(S) : CA 41077/01 HEARING DATE(S) : 20 June 2002 JUDGMENT DATE : 26 July 2002

PARTIES : Fyntray Constructions Pty Ltd (Claimant) Macind Drainage & Hydraulic Services Pty Ltd (Opponent) JUDGMENT OF : Heydon JA at 1; Hodgson JA at 69; Ipp AJA at 78

LOWER COURT JURISDICTION : District Court LOWER COURT DC 7013/01 FILE NUMBER(S) : LOWER COURT Gibson DCJ JUDICIAL OFFICER :

COUNSEL : Mr G J McVay (Claimant) Mr G O Blake (Opponent) SOLICITORS : James A Moustacas & Co (Claimant) Toomey Pegg Drevikovsky (Opponent)

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 Interpretation Act 1987 Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407 CASES CITED: MacDonald v Martin [2002] NSWCA 178 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 DECISION : The Summons is dismissed; the claimant is to pay the opponent's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 41077/01 DC 7013/01

HEYDON JA HODGSON JA IPP AJA

26 July 2002

FYNTRAY CONSTRUCTIONS PTY LTD v MACIND DRAINAGE & HYDRAULIC SERVICES PTY LTD

Held (Heydon JA, Hodgson JA and Ipp AJA agreeing), refusing leave to appeal: On the true construction of the Building and Construction Security of Payment Act 1999 (NSW) it is permissible for a person entitled to a progress payment under a construction contract to serve a payment claim on the person who under the contract is liable to make the payment even though the claim relates to work done in periods prior to the month in which the payment claim is served. Hence the defendant's claim was not invalid: [53]. O R D E R S 1. The Summons is dismissed.