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) Solicitors: Dentons Australia Pty Ltd (Plaintiff) CCS Legal (First Defendant) File Number(s): 2019/00343701 Publication restriction: Nil Judgment Introduction 1. By summons filed on 1 November 2019, the plaintiff, Modog Pty Limited (Modog), seeks a declaration that an adjudication determination made by the second defendant (adjudicator) under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the SoP Act) dated 23 October 2019 (determination) is void and an order that it be quashed, together with ancillary relief. 2. The determination relates to what the first defendant, ZS Constructions (Queenscliff) Pty Ltd (ZS Queenscliff), contends (and Modog disputes) was a payment claim served by ZS Queenscliff on Modog on 11 September 2019 in the amount of $89,111.89 (including GST) in accordance with s 13(1) of the SoP Act. The amount allowed by the adjudicator was $57,488.66. 3. On 1 November 2019, Modog paid the adjudicated amount into Court as security in support of injunctions restraining ZS Queenscliff from taking steps to enforce the determination and the third defendant, Adjudicate Today, from issuing an adjudication certificate under s 24 of the SoP Act pending determination of these proceedings. 4. As is usual, the adjudicator and the third defendant did not appear at the hearing and filed submitting appearances. Background 1. On 19 September 2016, Wyndora 36 Pty Limited (Wyndora) entered into a head contract with Modog to design and construct senior living apartments at property located in Wyndora Avenue, Freshwater. 2. On 27 September 2016, Modog entered into a sub-contract with ZS Queenscliff for the demolition of existing buildings and the construction of nine new seniors living apartments, basement parking and associate site works at the property (project). 3. In March 2018, ZS Queenscliff and Modog varied the sub-contract to reflect that ZS Queenscliff was to provide Modog with construction management and procurement services in relation to the project (varied contract). The varied contract included that ZS Queenscliff would receive a project manager allowance of $160,000 p/a, a contract administrator allowance of $80,000 p/a and that payments of sub-contractors and suppliers would be made at the end of each month. 4. Christopher Zaarour, who was employed by ZS Queenscliff and is a director of ZS Constructions (Australia) Pty Ltd (ZS Australia) (the main ZS group entity) and Zaarour Investments Pty Ltd, was the project manager for the project. 5. After variation of the contract in March 2018, ZS Queenscliff and Modog adopted a process in relation to progress claims and payments of amounts relating to the project. As part of that process, each month ZS Queenscliff prepared a payment summary sheet listing invoices and amounts due and payable in respect of construction management and procurement services provided by ZS Queenscliff under the varied contract (including any variation and profit claims), materials acquired from suppliers and work done by trade contractors. 6. Materials for the project were acquired by ZS Queenscliff from suppliers using the trade accounts of ZS Australia. At least some supplier invoices were addressed to ZS Australia rather than ZS Queenscliff. 7. Some work on the project was done by trade contractors pursuant to sub-contracts between the sub-contractor and Modog. The sub-contracts were administered by ZS Queenscliff. At least some invoices issued by sub-contractors were addressed to Modog (and, in some cases, to Wyndora), rather than ZS Queenscliff. 8. Each month, Mr Zaarour and Nick Rickard from Modog met to review the payment summary sheet and agree the amounts to be paid in respect of the amounts referable to ZS Queenscliff's claims, suppliers' invoices and sub-contractor costs. ZS Queenscliff received payment in respect of all amounts, after which it would pay its own fees and disbursements (being the amounts owed to suppliers) and then pay any residual amount to the sub-contractors. 9. Copies of payment summary sheets for November 2018 (Progress Claim 13) and for July 2019 (July PC 20) were tendered at the hearing in response to Modog's late application to amend (Ex 1 and Ex 2). The payment summary sheets list the names of entities who have issued invoices and the dollar amount of each invoice. They also include a yellow column with amounts listed against the relevant invoice, which signifies what had been agreed to be paid. Both payment summary sheets include a "profit" claim for the relevant month. 10. The July 2019 payment summary sheet includes amounts in respect of invoices the subject of prior progress claims under headings such as "OLD", "July PC9" and "June PC 20", as well as in respect of the July month and current claim. It also includes a "PAYMENTS NOW" figure (representing what had been agreed to be paid), which is less than the "PAYMENTS TO BE MADE" figure (being the total of all invoiced amounts listed). It also refers to amounts for invoices from CM (Aust) (SM) and Zaarour Investments which related to construction management and procurement services work done by ZS Queenscliff. 11. ZS Queenscliff relies on the November 2018 and July 2019 payment summary sheets as evidence of the format of previous payment claims it made under the SoP Act. While Modog disputes their characterisation as payment claims for the purposes of the SoP Act, it accepts they were prepared as part of the process adopted by the parties in relation to claims made by ZS Queenscliff for progress payments. 12. On 29 August 2019, Modog issued a show cause notice to ZS Queenscliff in accordance with cl 39.3 of the subcontract. It subsequently terminated the subcontract on 13 September 2019 asserting that ZS Queenscliff failed to show cause. The disputed payment claim 1. On 11 September 2019, Mr Zaarour sent an email to Mr Rickard (11 September email) attaching a document referred to as a "Payment Summary Sheet" for the project. 2. As there is an issue as to its meaning, I have set out the contents of what was written in the 11 September email in full below: Nick, As our Project Management Services was brought to an end by Modog Pty Ltd and we vacated the site as per your request on the 5th September 2019, please find attached Payment Summary Sheet. (Invoices to be sent separately in the following emails as per bullet points below). Old ones (Prior to July 2018) July 2018 PC9 Sept 2018 PC11 May 2019 PC19 June 2019 PC20 July 2019 PC21 Aug 2019 PC22 The following invoices MUST be paid NOW and provide receipt of payment. Supplier's [sic] and Management Bingo Bins Brookvale sand Cross cut Complete fire Hardware & General Jomon Architectural Door Hardware MD Bricks North Shore Sand & Cement CM Australia Zaarour Investments ZS Constructions Invoices. Any further invoices received covering any works or supply items for this project must also be paid. Modog Pty Ltd must acknowledge that these debts will also be paid within their payment terms as per invoice. You must also understand that all the subcontractors have been signed under Modog Pty Ltd as per your request and it's your responsibility to pay all invoices accordingly to their terms and conditions. ZS (logo) Zaarour Sleiman Christopher Zaarour Project Managers – Building Contractors. 1. The Payment Summary Sheet attached to the 11 September email is in the same format as the July 2019 payment summary sheet. It identifies entities, invoice numbers, amounts and totals for invoices under the headings "OLD ones" (four invoices), "July PC 9" (one invoice), "Sept PC 11" (one invoice), "May PC 19" (one invoice), "June PC 20" (four invoices), "July PC 21" (22 invoiced amounts) and "Aug PC 22" (23 invoices). The total next to "PAYMENTS TO BE MADE" is $629,059.91. The Payment Summary Sheet includes details of invoices in respect of the "supplies and management" identified in the 11 September email. 2. There were then sent separately but following on from the 11 September email, six further emails all dated 11 September 2019 from Mr Zaarour to Mr Rickard. Each email attached invoices that were referred to in the Payment Summary Sheet as follows: 1. the first email attached seven invoices referred under the headings "OLD ones", "July 2018 PC 9", "Sept 2018 PC11" and "May 2019 PC19", all of which were addressed to Modog or Wyndora; 2. the second email attached five invoices referred to under the heading "June 2019 PC20", all of which were addressed to Modog; 3. the third email attached thirteen invoices referred to under the heading "July 2019 PC 21 (Part 1 of 2)". Seven invoices were addressed to Modog and six were addressed to ZS Australia from Bingo Waste, Hardware & General and Jomon Architectural; 4. the fourth email attached eight invoices referred to under the heading "July 2019 PC 21 (Part 2 of 2)". Five were addressed to Modog, two to ZS Australia from MD Brick and North Shore Cement & Sand and one to ZS Australia which appears to relate to an invoice also addressed to Modog; 5. the fifth email attached fourteen invoices referred to under the heading "Aug 2019 PC 22 (Part 1 of 2)". Eight of the invoices were addressed to Modog, one of which was from CM (Aust) Pty Limited for site management and supervision works. The other six were addressed to ZS Australia from Bingo Waste, Brookvale Sand, Complete Fire Door, Crosscut Concrete and Jomon Architectural; and 6. the sixth email attached ten invoices also referred to under "Aug 2019 PC 22 (Part 2 of 2)". All ten invoices were addressed to Modog or to Modog and Wyndora. Three were from ZS Queenscliff and one was from Zaarour Investments Pty Limited relating to supervision works. 1. Pausing here, in addition to ZS Queenscliff, Zaarour Investments and CM (Aust), all of the fourteen invoices addressed to ZS Australia are from entities referred to in the dot points under the heading "Supplier's [sic] & Management" in the 11 September email and are also detailed in the Payment Summary Sheet (the suppliers). 2. On 19 September 2019, Modog served five payment schedules in response to the five invoices sent under cover of the fifth and sixth emails from ZS Queenscliff, Zaarour Investments and CM (Aust) (five management invoices). Three payment schedules were addressed to ZS Queenscliff, one to Zaarour Investments and one to CM (Aust). Presumably, Modog took this course because each of the five management invoices included the words "This is a payment claim made under the Building and Construction Industry Security of Payments Act 1999 (NSW)". 3. Modog's payment schedules certified the amount payable in respect of the five management invoices to be zero. They each attached a schedule setting out the reasons why Modog was withholding payment which, in summary, were that there was no construction contract with Modog, the payment claim did not identify a reference date, the payment claim did not contain a due date for payment, the payment claim was not served within any period determined in accordance with the construction contract, the payment claim did not sufficient identify the works or related goods or services to which the progress payment relates, and the purported works were not undertaken on the project. The three payment schedules in relation to ZS Queenscliff also asserted that the payment claim did not identify the clause within the contracts management agreement that purportedly entitled ZS Queenscliff to claim a monthly fee. The adjudication process 1. On 3 October 2019, ZS Queenscliff lodged an adjudication application with Adjudicate Today, following which the adjudicator was appointed to adjudicate the application. 2. In its submission filed in support of the adjudication application, ZS Queenscliff contended that it served a payment claim on 11 September 2019 which "comprised the 11 September email, the attached Payment Summary Sheet and referring to invoices that were to be sent separately". It contended that it was entitled to be paid the amount of $89,111.89, being the total of the five management invoices in respect of works done by ZS Queenscliff and the fourteen invoices for materials from the suppliers which were referred to in the Payment Summary Sheet. Copies of twenty-one invoices, being the five management invoices and sixteen invoices from suppliers were included in tab 2 to ZS Queenscliff's submissions as the "payment claim". 3. ZS Queenscliff did not claim to be entitled to the other invoice amounts referred to in the Payment Summary Sheet as they were for sub-contractor invoices for which Modog was liable as the counterparty. 4. On 14 October 2019, Modog served its adjudication response. In its submissions to the adjudicator, Modog argued that the 11 September email and Payment Summary Sheet was not a valid payment claim for reasons similar to those raised in the payment schedules. It also contended that the payment claim did not indicate the amount of the progress payment that ZS Queenscliff claimed to be due. 5. In the determination, the adjudicator accepted that ZS Queenscliff's payment claim was for a progress payment in the amount of $89,111.89 (incl GST) made up of unpaid amounts from PC 21 totalling $5,109.15 (excl GST), and PC 22 totalling $75,901.65 (excl GST). He concluded that it was a valid payment claim served on Modog on 11 September 2019 with a reference date of 31 August 2019. 6. The only part of payment claim the adjudicator did not allow was in respect of invoice 18 from ZS Queenscliff for construction management in the amount of $21,249.00 (being one of the five management invoices). Issues in dispute 1. Modog's amended technology and construction list statement (ATCLS) (which I granted Modog leave to file in court at the hearing) raises ten issues by way of challenge to the determination, including that the adjudicator denied Modog natural justice and/or procedural fairness, incorrectly determined the existence of a contract, failed to correctly determine the amount of the payment claims and incorrectly determined that the payment had a valid reference date (paras B1 – B6B ATCLS). 2. At the hearing, Modog's counsel confirmed that Modog no longer pressed seven of the ten issues raised and limited its challenge to three grounds (paras B5a, B6A and B6B of the ATCLS), being:- 1. whether the 11 September email was a payment claim within the meaning of s 13(1) of the SoP Act; 2. if the 11 September email was a payment claim, whether it was sent by ZS Queenscliff as a person who was entitled to seek a determination for the purposes of s 17 of the SoP Act; and 3. whether the adjudicator committed a jurisdictional error because there was no jurisdiction to determine multiple payment claims in respect of a single reference date. 1. At the hearing, it was not in dispute that ZS Queenscliff was a person who had undertaken to carry out construction work or supply related goods and services under a construction contract with Modog and was entitled to a progress payment: s 8(1) of the SoP Act. Nor was there a dispute that ZS Queenscliff was a party that might be entitled to serve a payment claim on Modog: s 13(1) of the SoP Act. 2. Modog's counsel also confirmed that Modog was not contending that the 11 September email and Payment Summary Sheet failed to comply with the requirements of s 13(2) of the SoP Act, thereby making it a non-complying payment claim (T10:25-31). Rather, Modog's argument is that the 11 September email together with the Payment Summary Sheet is not a payment claim as it does not claim payment by ZS Queenscliff. It says that this failure means it cannot be a payment claim within s 13(1) of the SoP Act which gives rise to jurisdictional error (T12:19-45). Was there a payment claim under s 13(1)? 1. Modog argues that to be a payment claim within the meaning of s 13(1) of the SoP Act the 11 September email and Payment Summary Sheet needed to say "pay me (ZS Queenscliff) the amount of $X". Modog submits that, properly understood, all the 11 Sept email did was indicate that invoices which were to be sent later had to be paid by Modog to the various entities identified on the invoices. 2. Modog contends that the words "provide receipt of payment" indicates that payment to third parties was being sought, rather than asserting a claim for payment by the sender of the 11 September email. It also relies on the references to payment of further invoices and to sub-contractors at the end of the 11 September email and the five management invoices sent later which stated they were payment claims, as indicating there was no claim for payment by ZS Queenscliff made in the 11 September email. 3. Modog relies on the decision in Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337 (Quickway), where the Court of Appeal concluded that an adjudication determination should be quashed as the tax invoice said to constitute the payment claim was made by a party who was not entitled nor claimed to be entitled to a progress payment and directed payment to another party. 4. ZS Queenscliff argues that the question of whether the 11 September email and Payment Summary Sheet is a valid payment claim does not involve any jurisdictional error which could lead to the determination being quashed. 5. ZS Queenscliff relies on the Court of Appeal's decision in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 in which the Court concluded that error in understanding a payment claim cannot form a basis upon which the adjudication can be quashed; per Basten JA (at [32]). It also points to similar comments in other cases, such as in Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9; [2006] NSWCA 238, where Basten JA stated, at [71] that "determination of the existence of essential preconditions to a valid claim are matters for the adjudicator, not for objective determination by a Court". 6. Service of a payment claim under s 13(1) of the SoP Act is an essential precondition to taking subsequent steps to seek adjudication under the SoP Act. Unless a payment claim answering the description in s 13(1) is served, there can be no adjudication application and hence no adjudication determination within the jurisdiction conferred by s 22 of the SoP Act: Southern Han Breakfast Point Pty Limited (in liquidation) v Lewence Construction Pty Ltd & Ors (2016) 260 CLR 340; [2016] HCA 52; at [44]; All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289. 7. As the Court of Appeal stated in All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289, the SoP legislative regime turns upon two things, one of which is the service of a payment claim by a person so entitled: at [36]. 8. In Quickway, the precondition was not met because the demand for payment of the sum which the adjudicator had determined was owing had been made by a party that was not entitled to the amount claimed because it had assigned its entitlement to the amount to another entity (at [337]). Not only did it direct payment to be made to a third party, the demand also made clear that the amount demanded was not claimed to be owed by the party that sent the demand itself (at [48]). In those circumstances, the majority of the Court of Appeal concluded that the determination case should be quashed. 9. In my view, it follows that service of a payment claim within the meaning of s 13(1), being service of a document by a party who is or who claims to be entitled to the money, is a necessary pre-condition to the adjudicator having jurisdiction to determine the adjudication request made by ZS Queenscliff. 10. The position in this case is different to that which the Court of Appeal dealt with in Quickway. As counsel for ZS Queenscliff noted, in Quickway, the party that sent the alleged payment claim did not dispute that it was not, and did not claim to be, owed the amount claimed. That position was also made very clear on the face of the demand because it identified that the "invoice" had been assigned to another party (at [42], [43], [44] and [47]). 11. In this case, ZS Queenscliff does not concede that it is not owed the amount it asserts to be claimed in the 11 September email and Payment Summary Sheet, being the total of the suppliers and five management invoice amounts of $89,111.89. Nor does ZS Queenscliff concede that it has no entitlement at law or equity to that amount or to any of the amounts referred to in the Payment Summary Sheet for the supplier and five management invoices. 12. To the contrary, consistent with the past process adopted by the parties and as stated in its adjudication submission, ZS Queenscliff asserts that it is owed the amount claimed as the five management invoices relate to work done by ZS Queenscliff to which it is entitled to be paid under the varied contract and the suppliers invoices are for materials on the project acquired through ZS Australia's trade accounts and represent disbursements paid to suppliers. It also contends that the 11 September email and Payment Summary Sheet represented a claim to be entitled to be paid for those amounts. 13. I am persuaded by ZS Queenscliff's submission that the 11 September email and attached Payment Summary Sheet can together be read as constituting a claim by a party who is or claims to be entitled to payment in respect of the supplier and the five management invoices for those entities listed in the 11 September email and referred to in the Payment Summary Sheet, and which add up to $89,111.89 (incl GST). 14. In my view, ZS Queenscliff's characterisation is available based on the terms of the documents and when read in the context of the past dealings between the parties. 15. The 11 September email refers in the opening line to "our Project Management Services", which relates to the varied contract between Modog and ZS Queenscliff. It goes on to demand that the "Supplier's & Management" invoices "must be paid now" and lists the entities in relation to those invoices, all of which are detailed in the Payment Summary Sheet attached and add up to $89,111.89. In contrast, the last two paragraphs refer to payment of future invoices (which are not referred to in the Payment Summary Sheet) and to the sub-contractor invoices (which are referred to in the Payment Summary Sheet) as debts of and should be paid directly by Modog. 16. The Payment Summary Sheet refers to "PC", which I read as an abbreviation for "progress claim", and to the amounts of the suppliers' and five management invoices referred to in the 11 September email as having to be paid. 17. The 11 September email and Payment Summary Sheet are also to be read in the context of the past process adopted by the parties pursuant to which ZS Queenscliff had made prior progress claims for payment to itself in respect of supplier invoices for materials acquired through the trade accounts of ZS Australia and invoices issued in the names of CM (Aust) and Zaarour Investments for work done by ZS Queenscliff using the same or a similar format of payment summary sheet to that attached to the 11 September email. 18. Construing the 11 September email and Payment Summary Sheet as asserting a claim for payment by ZS Queenscliff of the amounts referred to in the supplier and management invoices accords with the past process of the parties and is one which, in the context of that past process, is open based on the terms of the documents themselves. 19. I do not agree with Modog's submission that the words "provide receipt of payment" in the 11 September email necessarily indicates that the sender of the email and Payment Summary Sheet does not claim to be entitled to those amounts and is merely demanding Modog pay third parties directly. A party may seek evidence of payment to itself in a range of circumstances, such as where payment is made by direct debit to confirm the date payment has been made. 20. Even if the words "provide receipt of payment" are taken as a direction to Modog to pay the suppliers in respect of their invoices, they do not, in my view, amount to an unequivocal statement by ZS Queenscliff that it asserts no claim to those amounts or that it is not owed the money: cf Quickway, at [43] and [44]. A party that claims to be owed money may direct that money to be paid elsewhere and the SoP Act does not mandate otherwise: Quickway, at [20] and [42]. 21. Modog's construction of the 11 September email as merely a direction to pay third parties in respect of money not claimed to be owed to ZS Queenscliff also fails to deal with the five management invoices, three of which are from ZS Queenscliff itself. At the very least, the 11 September email and Payment Summary Sheet claims payment of those amounts in respect of which ZS Queenscliff asserts an entitlement, as it had in the past. 22. As to the notations on and parties to the supplier and management invoices, I do not consider the fact that the supplier invoices were issued to ZS Australia and two of the five management invoices being from Zaarour Investments or CM (Aust) invoices to impact the position, as contended by Modog. As noted above, payment to ZS Queenscliff of those types of invoices is consistent with the past process. 23. Nor do I consider the notations on the management invoices from Zaarour Investments and CM (Aust) as payments claims under the SoP Act to change the position. Those invoices were sent after the 11 September email and the Payment Summary Sheet and provide further details to the summary information contained in the Payment Summary Sheet. In those circumstances, I do not consider the notations on those invoices to signify that ZS Queenscliff does not claim to be entitled to payment for those amounts. 24. The 11 September email and Payment Summary Sheet do not expressly assert that they constitute a payment claim for a progress payment under the SoP Act. The amount being claimed is also not explicitly stated in the 11 September email and can only be arrived at by calculating the amounts of the supplier and five management invoices referred to in the Payment Summary Sheet. 25. There is no requirement for a payment claim to explicitly state that it was a claim made under the SoP Act. As noted earlier, no issue was taken at the hearing by Modog that the 11 September email and Payment Summary Sheet did not comply with s 13(2) of the SoP Act because they failed to identify the construction work to which the progress payment relates or did not indicate the amount of the progress payment claimed to be due: s 13(2)(a) and (b) of the SoP Act. Nor was any submission made (correctly in my view), that s 13(1) of the SoP Act required the 11 September email itself to explicitly state the total of the amount claimed. 26. I accept that there is ambiguity within the 11 September email and Payment Summary Sheet and they may be open to different interpretations, which could lead to some confusion. 27. However, unclear drafting in a document which a party purports to be a payment claim and which may lead to confusion because it is open to different interpretations, does not, in my view, necessarily raise a jurisdictional error. The parameters of a payment claim are a matter for an adjudicator, as are its scope and nature. An error in interpreting a payment claim for the purpose of determining the amount to which a claimant is entitled by way of progress payment is also not a jurisdictional error and cannot be used to invalidate a determination: Icon Co NSW Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 at [32]; Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd [2019] NSWSC 286 at [74]. 28. For these reasons, I am not satisfied that Modog has identified that the adjudicator engaged in any jurisdictional error by accepting the 11 September email together with the Payment Summary Sheet as a payment claim for $89,111.89 in respect of the supplier invoices and five management invoices for the purposes of s 13(1) of the SoP Act. Was the payment claim sent by ZS Queenscliff? 1. The next issue raised by Modog is whether the 11 September email and Payment Summary Sheet was sent by ZS Queenscliff as the relevant party to the varied contract. 2. Modog contends that the 11 September email (and Payment Summary Sheet) was not sent by ZS Queenscliff but was sent by some other entity (most likely ZS Australia) which was not a party who was or who could claim to be entitled to a progress payment under the varied contract. 3. Modog points to the 11 September email having been sent from Mr Zaarour (who is not a director of ZS Queenscliff), the reference to Zaarour Sleiman in the logo above Mr Zaarour's name at the end of the email, and ZS Australia (which is referred to in the small print disclaimer at the bottom of the email) as the only legal entity named in the 11 September email. It also points to the supplier invoices addressed to ZS Australia. 4. The 11 September email was sent by Mr Zaarour from his email chris@zs.com.au and refers to him by name at the end of the email. 5. As noted earlier, Mr Zaarour was the project manager employed by ZS Queenscliff. As part of his role, Mr Zaarour prepared monthly progress claims in a similar format to the Payment Summary Sheet which he provided to Mr Rickard, Modog's representative. While the process may have differed in that the Payment Summary Sheet detailing the invoices under the Aug PC 22 and from prior claims was sent under cover of the 11 September email and not discussed between the parties, consistent with their past dealings it was provided by Mr Zaarour, as project manager of ZS Queenscliff, to Mr Rickard and in a similar format. 6. The 11 September email also refers to "our" project management services having been brought to an end. The party providing project management services to Modog was, relevantly, ZS Queenscliff. 7. When considered objectively, these matters are, in my view, sufficient to conclude that 11 September email and Payment Summary Sheet should be construed, and would properly have been understood by Modog, to have been sent by or on behalf of ZS Queenscliff. 8. The reference to the Zaarour Sleiman group logo is, as ZS Queenscliff submits, a neutral factor in circumstances where previous correspondence between the parties which recorded the terms of the varied contract also used the Zaarour Sleiman logo and there was no dispute that the varied contract was between ZS Queenscliff and Modog. 9. I also do not consider the reference to ZS Australia in the small print disclaimer to be of such significance that it outweighs the other objective indicators (referred to above), that support the conclusion that the 11 September email and Payment Summary Sheet was sent by Mr Zaarour as project manager for and on behalf of ZS Queenscliff as the relevant claimant. 10. Modog did not dispute that ZS Queenscliff was a party entitled to make a payment claim under s 8 and s 13(1) of the SoP Act. It follows that I do not accept there was jurisdictional error of the type asserted by Modog, being that the 11 September email and Payment Summary Sheet was sent by a person not entitled to seek adjudication under s 17 of the SoP Act. Were there multiple payment claims in respect of a single reference date? 1. Modog submits that, even if the 11 September email and Payment Summary Sheet was a payment claim within the meaning of s 13(1) of the SoP Act, it was one of four payment claims received from ZS Queenscliff on the same day, the others being three of the five management invoices addressed to Modog expressed to be payment claims from ZS Queenscliff. 2. Modog submits that sending four payment claims is contrary to s 13(5) of the SoP Act, which provides that a claimant cannot serve more than one payment claim in respect of each reference date under the construction contract. It submits it was not open to ZS Queenscliff to seek adjudication in respect of the amounts claimed in its three management invoice payment claims. 3. Modog relies on Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 in which McDougall J held that it was not open to a claimant to seek adjudication of a second payment claim, or open to the adjudicator, as a matter of jurisdiction, to consider it and make a determination, at [31]. 4. I am not persuaded by Modog's submission that the three ZS Queenscliff management invoices represent separate and distinct payment claims to the payment claim made by the 11 September email and Payment Summary Sheet. 5. I accept that the three ZS Queenscliff management invoices may have been in a more traditional form of payment claim than the 11 September email, including because they state they are payment claims within the meaning of the SoP Act. But, in my view, those three invoices (and the other two management invoices and the supplier invoices) are more properly understood as supporting documents that provide further details to those contained in the Payment Summary Sheet about the amounts that form part of the payment claim for $89,111.89, rather than being separate and additional payment claims. 6. The adjudication determination also refers to "a progress payment", "a payment claim" being served with a reference date of 31 August 2019 and "the payment claim", notwithstanding it refers to numerous invoices which are then considered as part of determining the one payment claim (at pages 2, 4 and 6 of the determination). The adjudicator determined one payment claim, rather than multiple claims. 7. When viewed as a matter of substance rather than form, there was only one payment claim made which comprised the total of the various amounts listed in the suppliers and management invoices, as referred to in the 11 September email and Payment Summary Sheet and detailed in the invoices that were forwarded later on the same day: Ardnas (No 1) Pty Ltd v J Group (Australia) Pty Ltd [2012] NSWSC 805, at [11]. 8. It is open to a claimant to submit one payment claim for the purposes of the SoP Act that comprises or refers to several invoices even though some or all of those invoices separately say they are a payment claim for the purposes of the Act: Rail Corporations of NSW v Nebax Constructions [2012] NSWSC 6, at [31]; Alan Conolly and Co v Commercial Indemnity [2005] NSWSC 339, at [23]. 9. Modog also contended that to interpret the 11 September email and Payment Summary Sheet as one payment claim could lead to a position where it might be subject to multiple adjudications in respect of the same amount which would be inconsistent with the purpose of s 13(5) of the SoP Act. This contention assumes that Modog received separate payment claims in the form of the two management invoices from CM (Aust) and Zaarour Investments directly and they could, therefore, seek to go to adjudication as well as ZS Queenscliff. As I have found, Modog was served with one payment claim from ZS Queenscliff comprising the total of the supplier and management invoice amounts and for which it was provided with supporting invoices. The fact that ZS Queenscliff chose to serve the 11 September email with the Payment Summary Sheet and then sent separate emails attaching the supporting invoices does not, in my view, alter the position. 10. Modog chose to serve multiple payment schedules in response to the five management invoices. The objective character of the 11 September email, Payment Summary Sheet and invoices as supporting documentation cannot be altered by Modog's response to them: Sought After Investments Pty Ltd v Unicus Homes Pty Ltd [2019] NSWSC 600 at [28]. Conclusion and orders 1. It follows that I am not satisfied that Modog has established any jurisdictional error which supports the orders sought in the summons that the adjudication determination be declared void and that it should be quashed. 2. I see no reason why the usual rule that costs follow the event should not apply and will order Modog to pay ZS Queenscliff's costs of the proceedings. 3. For these reasons, I make the following orders:- 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2019