Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339

New South Wales Supreme Court

CITATION : Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339

HEARING DATE(S) : 13/04/05

JUDGMENT DATE : 29 April 2005

JURISDICTION : Technology & Construction List

JUDGMENT OF : Master Macready at 1

DECISION : Paragraph 41

CATCHWORDS : Contract - Statutory Construction. - Whether three invoices served in the same facsimile can constitute one payment claim under the Building and Construction Industry Security for Payment Act 1999. - Held that this did constitute one payment.

LEGISLATION CITED : Building and Construction Industry Security of Payment Act

Brodyn Pty Limited v Davenport (2004) NSWCA 394 Co-ordinated Constructions Pty Ltd v J M Hargreaves (NSW) Pty Ltd [2005] NSWSC 77 CASES CITED : Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 Transgrid v Siemens [2004] NSWSC 87 at 91 to 100

PARTIES : A R Conolly, E Ramsay & L Mynott t/as A R Conolly & Company v Commercial Indemnity Pty Limited

FILE NUMBER(S) : SC 55026 of 2005

Mr M Christie for plaintiff COUNSEL : Mr S Balafoutis for 1st defendant

A R Conolly & Company for plaintiff SOLICITORS : Bryan Gorman & Co for 1st defendant

LOWER COURT JURISDICTION :

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

Master Macready

Friday 29 April 2005

55026 of 2005 A R Conolly, E Ramsay & L Mynott t/as A R Conolly & Company v Commercial Indemnity Pty Limited and Johanne Tobin JUDGMENT 1 Master: This is the hearing of the plaintiffs' claim in which they now seek a declaration that a determination made by the second defendant under the Building and Construction Industry Security of Payment Act 1999 ("the Act") is void. They also seek an order in the nature of certiorari pursuant to section 69 of the Supreme Court Act 1970 quashing the determination. A Judge of the Court has referred the whole of the matter to me for hearing. 2 The plaintiffs who carry on business as A R Conolly & Company engaged the first defendant to carry out construction works which were an office fit-out at the plaintiffs' business premises. The works were carried out between August 2004 and November 2004. There is no written contract and the works were carried out pursuant to an oral agreement between the parties, which did not make any provision for progress payments. 3 The matter at issue is an alleged payment claim that was served by the first defendant on the plaintiffs on 14 February 2005. The payment claim or claims were served by facsimile and its form is important. The facsimile was of four pages duration and consisted of three tax invoices dated 14 December 2004. Each tax invoice occupied one page. The fourth page was simply a repeat of the information on the first page. Accordingly it can be put to one side. 4 The first page was invoice number 041216 and on its face was for "Variations to the scope of works – various". It specified the amounts and concluded with a statement of the "Amount of Claim" with GST totalling $4074.40. At the foot of the page there was a notation as required by section 13(2)(c) of the Act in these terms: "Note: This is a payment claim made under to the Building and Construction Industry Security of Payment Act 1999 NSW." 5 The second page was invoice number 041214 referring to the job and describing the claim, as "progress claim #3". The total amount claimed was $57,750 and was otherwise in a similar form with the same notation as the first page. The third page was invoice number 041215 and was on its face for "variations to scope of works -- after hours labour". The amount of the claim including GST was $16,632. It carried at the foot of the page the same notation. 6 The first of the four pages carries a received stamp, which was placed on it on 14 February 2005. Plainly all four pages were received at or about the same time. 7 On 1 March 2005 the plaintiffs issued a notice under section 17 (2) of the Act claiming an amount of $78,456.40. The first defendant did not provide a payment schedule within the time limited by section 14 of the Act and there was no provision of a payment schedule within the time limited by section 17 of the Act. 8 The decision of the adjudicator, who was the second defendant, was made on 25 March 2005. The adjudicator considered the question of whether or not the documents served on 14 February 2005 constituted a valid payment claim. In her adjudication the adjudicator said: "The Payment claim I note that the claimant considers the payment claim, which was served by facsimile on 14th of February 2005, to comprise of three invoices addressed to A R Connolly, L Mynott & E Ramsey T/as A R Conolly & Co dated 14 Dec 2004. Each invoice was individually endorsed under s 13(2) (c) of the act and together totalled $78,456.40. I It is noted that there can only be one payment claim in respect of each reference date under a construction contract 13(5) of the act) however I can see no provision in the Act which would prevent the treatment of individually endorsed invoices, served together, to be regarded in their entirety as one payment claim." The plaintiffs' claims 9 In support of the plaintiffs' claim that the determination was void the plaintiffs raised the following matters: