Steel v Beks [2010] NSWSC 1404

New South Wales Supreme Court

CITATION : Steel v Beks [2010] NSWSC 1404

HEARING DATE(S) : 10/11/2010

JUDGMENT DATE : 6 December 2010

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

DECISION : I direct the parties to bring in short minutes.

CATCHWORDS : Building & Construction. Application to set aside determination under Building & Construction Industry Securty of Payment Act 1999. Finding by the court that payment claims and s17(2) notices not served. Determination set aside.

PARTIES : Steel Building Systems Pty Limited v Beks Constructions (NSW) Pty Limited

FILE NUMBER(S) : SC 22010/352774

COUNSEL : Mr MJ Watts for plaintiff Mr S Assaf for defendant

SOLICITORS : MJ Woods & Co for plaintiff DPH Lawyers for defendant

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

Associate Justice Macready

Monday 6 December 2010

2010/352774 - STEEL BUILDING SYSTEMS PTY LIMITED v BEKS CONSTRUCTIONS (NSW) PTY LIMITED JUDGMENT 1 His Honour: This is the hearing of an amended summons in which the plaintiff seeks various orders and declarations concerning two adjudication certificates given under the Building and Construction Industry Security of Payment Act 1999 ('the Act'). These include declarations that the certificates are null and void and orders restraining the enforcement of the judgment that has resulted from the filing of the certificates. 2 A Judge of the Court has referred the hearing of the proceedings to me. 3 The plaintiff is a supplier of temporary building structures and the defendant is a small building contractor who erects buildings supplied by the plaintiff. The defendant erected building structures for the plaintiff at the Emirates Resort, Wolgan Valley, Coates Balmain and at the Caltex Refinery at Kurnell. 4 The defendant prepared progress claims. One was for Emirates Resort and Coates Balmain and the second was for Caltex Kurnell. 5 According to a consultant who assisted the defendant in the preparation of the claims, on 7 May 2010, the consultant attempted to send the claims to the plaintiff's facsimile number: 02 9833 3177. The transmission was not successful. On that same day he located a website on the internet that displayed the facsimile number as 02 9627 5310 and sent the claim to that number. No payment schedule was received. 6 On 24 May 2010, notices were then prepared under s 17(2)(b) of the Act. In respect of the first claim this was sent to the facsimile number 02 9627 5310. A facsimile of that same notice was sent to a telephone number 02 9627 9886. The transmission was said to have been successful. 7 The same procedure was followed in relation to the notice for the second payment claim pursuant to s 17(2)(b). There was no response by the plaintiff to the notice, so applications for adjudication were lodged and adjudications issued in due course. They were then registered as a judgment. 8 The plaintiff's case is that there was no receipt of the payment claims or the section 17 notices. According to Mr Matthew Young, he first heard about the matter when he received an email or a letter from the adjudication authority, Australian Solutions Centre ('ASC'), saying that the application had been received. As he had not provided a payment schedule, following advice from ASC, he did not provide a response. 9 The defendant's evidence is that since they moved from Riverstone to Schofields some two years ago the facsimile telephone number at their place of business is 02 9833 3177. In December 2009 and April 2010 facsimiles from the defendant to the plaintiff were received on that facsimile number and the defendant's evidence suggests that in June 2008, there was a redirection notice for three months in respect of telephone services 02 9627 5310 and 02 9627 9886 to the plaintiff's new telephone facsimile number of 02 9833 3177. There is also evidence that in September and October 2010 the telephone service 02 9627 5310 was used for an unrelated business trading as "Fishtastic Aquarium Riverstone". 10 It seems clear that the defendant did not receive the payment claims and that they were sent to someone else who by May 2010 used that number presumably the same business which was still operating Fishtastic in September 2010. 11 The question that arises is how this error occurred. It is plain that the defendant company had used the correct facsimile number in 2009 and in 2010. Indeed the consultant, Mr Robert Sundercombe, who was employed to prepare the claims was told to send it to the new 02 9833 3177 number but as his affidavit records he was not successful in sending it, so he searched the internet to find contact details for the plaintiff. The consultant retained a copy of the page he found on the internet and it is exhibit B to Mr Sundercombe's affidavit dated 29 October 2010. The top of the page commences with a Steel Building Systems Pty Ltd logo and gives a postal address of PO Box 602, Riverstone, NSW 2765. It gives a phone number of 02 9627 9886 and a facsimile number of 02 9627 5310. The first four letters of the prefix of the ordinary number is for the Riverstone area and not Schofields where the plaintiff is now located. It is plain from the notations on the document that it was found on a website: www.portaroom.com.au. That is a separate company, although there is some connection between the directors of that company and the plaintiff. 12 On the face of the document there is some business inter-relationship between these companies. The document states: "…Steel Building Systems Pty Ltd started a Greenfield company to brand our product, …portaroom and now also offer a componentry service for your transportable buildings… … Our steel building system allows Modular flexibility to configure the design t your specific needs, … Go to our Design Gallery @portaroom.com.au … It is a pleasure introducing SBS and we would like to assist in quoting and/or preliminary designs for your future projects. Please do not hesitate to contact us for your next Modular Transportable Building."