Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232

New South Wales Supreme Court

CITATION : Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 HEARING DATE(S) : 7, 8, 9 & 13 December 2004 (13 December for orders) JUDGMENT DATE : 9 December 2004

JUDGMENT OF : McDougall J at 1 DECISION : See paras [58] to [60] of judgment

CATCHWORDS : BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether letter in law sufficient to be payment schedule - s 14(2)(b), (3) - whether "nothing" an amount for purposes of s 14(2)(b) - whether letter "provided" within meaning of s 14(1) LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW) Trade Practices Act 1974 (Cth) Brodyn v Davenport [2004] NSWCA 394 CASES CITED : Connor v Blacktown District Hospital [1971] 1 NSWLR 713 Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 PARTIES : Barclay Mowlem Construction Limited (Plaintiff) Tesrol Walsh Bay Pty Limited (Defendant) FILE NUMBER(S) : SC 55043/04 COUNSEL : M G Rudge SC/D R Sibtain (Plaintiff) G Inatey SC/D TMiller (Defendant) SOLICITORS : Corrs Chambers Westgarth (Plaintiff) Malcolm Johns & Co (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

9 December 2004 Ex tempore (Revised 10 December 2004)

55043/04 BARCLAY MOWLEM CONSTRUCTION LIMITED v TESROL WALSH BAY PTY LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff (BMC) as contractor and the defendant (TWB) as principal are parties to a construction contract made on 11 November 2002. On 7 May 2004, BMC served a payment claim, called "Progress payment claim number 13", on TWB. On 18 May 2004, within the time for TWB to provide a payment schedule to BMC, TWB prepared a letter to BMC responding to the payment claim. BMC says that the letter was not a payment schedule and was not provided to it. Thus, it says, it is entitled to judgment for the amount of the payment claim, $1,111,923. The issues 2 There are four: