Leighton Contractors Pty Limited v Campbelltown Catholic Club Limited, Campbelltown Catholic Club Limited v Leighton Contractors Pty Limited [2003] NSWSC 1103

New South Wales Supreme Court

CITATION : Leighton Contractors Pty Limited v Campbelltown Catholic Club Limited, Campbelltown Catholic Club Limited v Leighton Contractors Pty Limited [2003] NSWSC 1103 HEARING DATE(S) : 27/11/03, 28/11/03 JUDGMENT DATE : 3 December 2003

JURISDICTION: Equity Division Technology and Construction List JUDGMENT OF : Einstein J DECISION : Summary judgment to be entered for Leighton Contractors Pty Limited.

CATCHWORDS : Contract - building and construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - Consideration of interrelationship of sundry provisions and analysis of principal's claimed entitlement to commence separate proceedings and/or to avoid summary judgment by invoking discretionary considerations - Progress claim submitted to Superintendent on same date as document purporting to be payment claim under the Act submitted to principal - Principal fails to serve payment schedule complying with sections 14(1) and (2) - Contractor commences proceedings and seeks summary judgment - Principal commences separate proceedings and seeks declaration that it does not owe any amount to contractor in respect of specific progress claim in excess of the amount specified in progress certificate issued by Superintendent and order that principal pay to the contractor such sum as it might recover against principal in the first proceedings - second proceedings held to be an abuse of process - Principal in first proceedings contends (as defendant) - That alleged payment claim was not a valid payment claim within s.13(2) of the Act because: (i) it did not identify construction work (or related goods and services) as required by s.13(2)(a) - (ii) there was no progress payment claimed as required by s.13(2)(b) - (iii) it did not bear the endorsement required by s. 13(2) (c) - - That contractor was and is not a person entitled or who claims to be entitled to a progress payment within s. 13(1) because: (i) it was not a person entitled to a progress payment under s. 8(1) - (ii) as at the date of the Alleged Payment Claim there was no reference date as and from which contractor was entitled to a progress payment within s. 8(1) and (2) - (iii) there was no amount calculated in accordance with the terms of the Contract which constituted a progress payment to which contractor was entitled under s. 9(a) - (iv) as at the date of the Alleged Payment Claim there was no progress payment under the Contract which had become due and payable within the meaning of s. 11(1) - - That Alleged Payment Claim was not a valid payment claim (in whole or in part) under s. 13 of the Act: (i) to the extent that it claimed for rock excavation, because it was not served within 12 months after such work was last carried out as required by s. 13(4)(b) - (ii) to the extent that it claimed for Delay Costs, because such claim was not permitted by the Act, the Delay Costs not being construction work to which the progress payment claimed by contractor related. - Alternatively, that if the Alleged Payment Claim were a valid payment claim, defendant was not liable to pay the amount claimed by contractor by reason that defendant served on plaintiff a payment schedule within the meaning of s. 14 of the Act, being the Certificate issued by Superintendent. Building and Construction Industry Security of Payment Amendment Act 2002 Building and Construction Industry Security of Payment Act 1999 (NSW) LEGISLATION CITED : Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Supreme Court Act 1970 (NSW) Abacus v Davenport [2003] NSWSC 1027 Beckhaus v Brewarrina Council [2002] NSWSC 960 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2003] NSWCA 4 De Martin and Gasparini Pty Limited v Energy Australia (2002) 55 NSWLR 577 Dixon v South Australian Railways Commissioner (1923) 34 CLR 71 Emag Constructions Pty Limited v Highrise Concrete Contractors (Aust) Pty Limited [2003] NSWSC 903 Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238 Hawkins Construction (Australia) Pty Ltd v Mac's Industrial Pipework Pty Ltd [2002] NSWCA 136 Jemzone Pty Limited v Trytan Pty Limited (2002) 42 ACSR 42 CASES CITED : Karimbla Construction v Alliance Group Building [2003] NSWSC 617 London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 BLR 51 Marra Developments Ltd v B W Rofe Pty Ltd [1977] 2 NSWLR 616 Parist Holdings Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365 Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869 Peninsula Balmain Pty Ltd v Abigroup Contractors Pty Ltd [2002] NSWCA 211 Perini Corporation v Commonwealth [1969] 2 NSWR 530 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 South Australian Railways Commissioner v Egan (1973) 130 CLR 506 Sutcliffe v Thackrah [1974] AC 727 Walter Construction Group Limited v CPL (Surry Hills) Pty Limited [2003] NSWSC 266 PARTIES : Leighton Contractors Pty Limited (Plaintiff in 55030/02, Defendant in 55033/02) Campbelltown Catholic Club Limited (Plaintiff in 55033/02, Defendant in 55030/02) FILE NUMBER(S) : SC 55030/02; 55033/02 COUNSEL : Mr GE Underwood (Plaintiff 55030/02, Defendant 55033/02) Mr MLD Einfeld QC, Mr TD Castle (Plaintiff 55033/02, Defendant 55030/02) SOLICITORS : Mallesons Stephen Jaques (Plaintiff 55030/02, Defendant 55033/02) Dibbs Barker Gosling ((Plaintiff 55033/02, Defendant 55030/02)