Thiess Pty Ltd v Lane Cove Tunnel Nominee Company Pty Limited [2008] NSWSC 729

New South Wales Supreme Court

CITATION : Thiess Pty Ltd v Lane Cove Tunnel Nominee Company Pty Limited [2008] NSWSC 729

HEARING DATE(S) : 4 July 2008 JUDGMENT OF : Hammerschlag J

EX TEMPORE JUDGMENT DATE : 4 July 2008

DECISION : Summons dismissed with costs

CATCHWORDS : BUILDING AND CONSTRUCTION INDUSTRY (SECURITY OF PAYMENT) ACT 1999 (NSW) - Section 14(4)(b)(i) & (ii) - whether relevant construction contract requires different time for provision of payment schedule from 10 business days otherwise required

LEGISLATION CITED : Building and Construction Industry (Security of Payment) Act 1999 NSW Trade Practices Act 1974,

CASES CITED : Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448

Thiess Pty Ltd ABN 87 010 221 486 PARTIES : John Holland Pty Ltd ABN 11 004 282 268 Lane Cove Tunnel Nominee Company Pty Limited ACN 103 411 294 Connector Motorways Pty Ltd ACN 103 411 052

FILE NUMBER(S) : SC 55036/2008

COUNSEL : M. Christie with V. Culkoff (Plaintiffs) F. Corsaro SC with D. Miller (Defendants)

SOLICITORS : Andrew McKeracher (In-house) (Plaintiffs) Minter Ellison (Defendants)

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

HAMMERSCHLAG J

4 JULY 2008

55036/2008 THIESS PTY LTD –V- LANE COVE TUNNEL NOMINEE COMPANY PTY LIMITED ACN 103 411 294 JUDGMENT 1 HIS HONOUR: The plaintiffs are builders. 2 In 2003 they contracted with the defendants under a Design and Construction Deed ("the Contract") to design, construct and commission a motorway including a tunnel, for a contract price exceeding $1 billion. 3 On 30 April 2008 the plaintiffs made progress payment claim number 53 ("the claim") for $9,020,196 of which $8,304,335 is a disputed early completion bonus. 4 By summons sued out of this Court on 15 May 2008 the plaintiffs, relying on ss 15(1)(a) and (2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act"), seek judgment in the amount of the claim. 5 Those sections provide as follows: 15 Consequences of not paying claimant where no payment schedule (1) This section applies if the respondent: (a) becomes liable to pay the claimed amount to the claimant under section 14(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and …