Grocon (Belgrave St) Developer Pty Ltd v Construction Profile Pty Ltd [2020] NSWSC 409

Supreme Court New South Wales

Medium Neutral Citation: Grocon (Belgrave St) Developer Pty Ltd v Construction Profile Pty Ltd [2020] NSWSC 409 Hearing dates: 15 April 2020 Decision date: 17 April 2020 Before: Ball J Decision: (1) Declare that the document dated 17 March 2020 delivered by the Defendant to the Plaintiff and purporting to be a payment claim (the Purported Payment Claim) under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) is void and of no effect for the purposes of Act.

(2) Order that the Defendant be permanently restrained by itself and by its servants and agents from seeking a determination under the Act in respect of the Purported Payment Claim.

(3) Order that the Defendant pay the Plaintiff's costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION – Progress payments – Whether payment claim claiming amounts paid under bank guarantees is one for construction work or related goods or services – Whether adjudicator can determine whether it has jurisdiction to determine a claim – Whether set off clause in construction contract void under s 34 Building and Construction Industry Security of Payment Act 1999 (NSW) - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 5, 6, 8, 13 and 34. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362 Boutique Developments Ltd v Construction & Contract Services Pty Ltd & Anor [2007] NSWSC 1042 Patterson Building Group Pty Ltd v Holroyd City Council [2013] NSWSC 1484 Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Category: Principal judgment Parties: Grocon (Belgrave St) Developer Pty Ltd ACN 617 489 639 (Plaintiff) Construction Profile Pty Ltd ACN 166 446 635 (Defendant) Representation: Counsel: FP Hicks SC with A Carr (Plaintiff) I Roberts SC (Defendant)