NC Refractories Pty Ltd -v- Consultant Bricklaying Pty Ltd [2013] NSWSC 842

Supreme Court New South Wales

Medium Neutral Citation: NC Refractories Pty Ltd -v- Consultant Bricklaying Pty Ltd [2013] NSWSC 842 Hearing dates: 20 June 2013 Decision date: 20 June 2013 Jurisdiction: Equity Division - Technology and Construction List Before: Hammerschlag J Decision: Proceedings dismissed. Plaintiff to pay first defendant's costs Catchwords: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) ss 4, 8, 13(5) - whether a payment claim was based on a construction contract - the parties entered into a verbal construction contract and the defendant served a payment claim - the plaintiff stated it would pay a lesser amount and the defendant sent a revised invoice - the plaintiff contended that the second invoice was not based on the construction contract but on a later independent arrangement arising out of the parties' communications which was not a construction contract - the plaintiff contended that if the claim was based on a construction contract it was the second claim under it and was in respect of the same reference date of the first claim and was impermissible under s 13(5) - held that the second claim was made under the original contract which had been varied and that the second claim was not impermissible as a duplication because the first one had by necessary implication been withdrawn. Held further that, in any event, prerogative relief sought by the plaintiff should be withheld on discretionary grounds Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Category: Principal judgment Parties: NC Refractories Pty Ltd - Plaintiff Consultant Bricklaying Pty Ltd - First Defendant Daniel Massey - Adjudicator - Able Adjudication Pty Ltd - Second Defendant Representation: Counsel: R.V. Zikmann - Plaintiff R.W. Notley - First Defendant Solicitors: Maclarens Lawyers - Plaintiff ERA Legal - First Defendant File Number(s): 2013/53078