Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Style Timber Floor Pty Ltd v Krivosudsky [2019] NSWCA 171 Hearing dates: 4 July 2019 Decision date: 16 July 2019 Before: Bell P at [1]; Leeming JA at [8]; Simpson AJA at [82] Decision: 1. Extend the time within which to apply for leave to appeal to 20 February 2019.

2. Grant leave to appeal, and direct that the draft notice of appeal stand as a notice of appeal.

3. Appeal dismissed, with costs. Catchwords: BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn't be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed Legislation Cited: Building and Construction Industry Payment Act 2004 (Qld), s 18 Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8, 11, 13, 14, 15, 16, 20, 21, 22, 32 Building and Construction Industry Security of Payment Act 2002 (Vic), s 15 District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), ss 48, 51 Cases Cited: 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674 Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391 Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247; 337 ALR 452 Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd [2007] QSC 333 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11; 365 ALR 345 Category: Principal judgment Parties: Style Timber Floor Pty Ltd (Applicant) Rastislav Krivosudsky (Respondent) Representation: Counsel: Dr A J Greinke (Applicant) E P Anderson (Respondent)