Tinbyr v K L Special Projects [2003] NSWSC 63

New South Wales Supreme Court

CITATION : Tinbyr v K L Special Projects [2003] NSWSC 63 HEARING DATE(S) : 14/02/03 JUDGMENT DATE : 14 February 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 18

PARTIES : Tinbyr Investments Pty Limited v K L Special Projects Pty Limited FILE NUMBER(S) : SC 5136/02 COUNSEL : Ms E Glover for plaintiff Ms N Obrat for defendant SOLICITORS : O'Neill Marengo Lawyers for plaintiff D Mosca for defendant

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

FRIDAY 14 FEBRUARY 2003

5136/02 - TINBYR INVESTMENTS PTY LIMITED v K L SPECIAL PROJECTS PTY LIMITED

JUDGMENT

1 MASTER: This is an application to set aside a statutory demand dated 24 September 2002 in the sum of $39,657.40. The demand relates to a contract for the fees for drawing engineering plans for a building development. The defendant is the engineer and the plaintiff was the building developer. 2 They entered into a contract on 23 November 2001 providing for $4,323 per unit as the price. Given the number of units, this was a total price of $99,429. There were payments on account during the period of the work and the balance owing is the amount which has been claimed in the statutory demand. 3 The contract contained a clause in these terms: "2. PROGRESS AND SCHEDULE OF PAYMENTS Week 2 10% of fee Week 4 1st progress payment 30% of fee Week 8 2nd progress payment 30% of fee Week 12 3rd progress payment 30% of fee (3rd Progress payment on the final completion of work if before week 12)"