Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd [2019] NSWSC 1743

Supreme Court New South Wales

Medium Neutral Citation: Modog Pty Ltd v ZS Constructions (Queenscliff) Pty Ltd [2019] NSWSC 1743 Hearing dates: 27 November 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Equity - Technology and Construction List Before: Henry J Decision: (1) The proceedings be dismissed. (2) The sum of $57,488.66 paid into Court on 1 November 2019 be paid to the first defendant. (3) The plaintiff to pay the first defendant's costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether email and attached schedule sent by project manager a payment claim under s 13(1) – whether defendant was person who sent documents it asserts was a payment claim – whether multiple payment claims served in respect of one reference date Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 22, 24 Cases Cited: Alan Conolly and Co v Commercial Indemnity [2005] NSWSC 339 All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 Ardnas (No 1) Pty Ltd v J Group (Australia) Pty Ltd [2012] NSWSC 805 Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238 Icon Co NSW Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd [2019] NSWSC 286 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337 Rail Corporations of NSW v Nebax Constructions [2012] NSWSC 6 Sought After Investments Pty Ltd v Unicus Homes Pty Ltd [2019] NSWSC 600 Southern Han Breakfast Point Pty Limited (in liquidation) v Lewence Construction Pty Ltd & Ors (2016) 260 CLR 340; [2016] HCA 52 Category: Principal judgment Parties: Modog Pty Limited ZS Constructions (Queenscliff) Pty Limited (First Defendant) Gregory Purcell (Second Defendant) Adjudicate Today Pty Limited (Third Defendant) Representation: Counsel: Mr B Phillips (Plaintiff) Mr BD Kaplan (First Defendant)