Lucas Stuart v Hemmes Hermitage [2009] NSWSC 477

New South Wales Supreme Court

CITATION : Lucas Stuart v Hemmes Hermitage [2009] NSWSC 477

HEARING DATE(S) : 14/05/09 and 15/05/09 JURISDICTION : Equity Division Technology & Construction List

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 15 May 2009

DECISION : See paragraphs [45] to [47] of the judgment.

CATCHWORDS : BUILDING AND CONSTRUCTION CONTRACTS - plaintiff served payment claim - whether defendant provided payment schedule - whether defence in these proceedings arises under the contract. - BUILDING AND CONSTRUCTION CONTRACTS - provision of payment schedule - whether can be provided by an agent - agent can only provide payment schedule where provision would bind principal.

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999

CATEGORY : Principal judgment

PARTIES : Lucas Stuart Pty Limited (Plaintiff) Hemmes Hermitage Pty Limited (Defendant)

FILE NUMBER(S) : SC 55002/09

COUNSEL : M A Ashhurst SC / M Dolenec (Plaintiff) S A Kerr (Defendant)

SOLICITORS : BCP Lawyers & Consultants (Plaintiff) Deacons Lawyers (Defendant)

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

McDOUGALL J

15 May 2009 (ex tempore – revised 18 May 2009)

55002/09 LUCAS STUART PTY LTD v HEMMES HERMITAGE PTY LTD JUDGMENT 1 HIS HONOUR: The plaintiff (Lucas Stuart) as contractor and the defendant (Hemmes Hermitage) as principal entered into a construction contract dated 8 November 2006. By that contract, Lucas Stuart undertook the design and construction of a project known as "Ivy" in George Street, Sydney. Lucas Stuart and Hemmes Hermitage are in dispute over a number of matters, including a payment claim, number 27, served by Lucas Stuart on Hemmes Hermitage on 6 November 2008. 2 Lucas Stuart says that Hemmes Hermitage, having failed to provide a payment schedule in time, owes the amount of the payment claim: in excess of $4.1 million. Hemmes Hermitage says that it did provide a payment schedule in time. In any event, Hemmes Hermitage says, the payment claim was invalid because it was not made in accordance with a mandatory requirement of the contract.