Barclay Mowlem Construction Limited v Estate Property Holdings Pty Limited [2004] NSWSC 649

New South Wales Supreme Court

CITATION : Barclay Mowlem Construction Limited v Estate Property Holdings Pty Limited [2004] NSWSC 649 HEARING DATE(S) : 16/07/04 JUDGMENT DATE : 19 July 2004

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

CATCHWORDS : Contract - Proper construction of S.13(4)(b) of Building and Construction Industry Security of Payment Act 1999 (NSW) - Validity of payment claim LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW) Hawkins Construction (Australia) Pty Ltd v Mac's Industrial Pipework Pty Ltd [2001] NSWSC 815 CASES CITED : Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103 Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869 Walter Construction Group Limited v CPL (Surry Hills) Pty Limited [2003] NSWSC 266 PARTIES : Barclay Mowlem Construction Limited ABN 36 009 830 460 (Plaintiff) Estate Property Holdings Pty Limited ABN 69 090 775 161 (Defendant) FILE NUMBER(S) : SC 55042/04 COUNSEL : Mr M Rudge SC, Mr D Meltz (Plaintiff) Mr M Ashhurst (Defendant) SOLICITORS : Baker & McKenzie (Plaintiff) Church & Grace (Defendant)

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

Einstein J

Monday 19 July 2004

55042/04 Barclay Mowlem Construction Limited v Estate Property Holdings Pty Limited JUDGMENT The notice of motion in proceedings 55042/04 1 By Notice of Motion dated 1 July 2004 the plaintiff seeks summary judgment against the defendant in relation to a statutory debt arising under the Building and Construction Industry Security of Payment Act 1999 (NSW) ["the Act"]. 2 The debt claimed is in the amount of $4,900,497.32 in relation to construction work carried out pursuant to a construction contract as defined by the Act. The payment claim 3 On or about 15 November 2002 the plaintiff entered into a design and construct contract ("the Contract") with the defendant for the construction by the plaintiff of four residential towers located at Lot 2, John Whiteway Drive, Gosford, New South Wales. 4 On 28 May 2004 the plaintiff served on the defendant a Payment Claim made in accordance with section 13 of the Act which is in the following terms: