Part 2 - Rights to progress payments
(1) On and from
each reference date under a construction contract, a person:
(a) who has
undertaken to carry out construction work under the contract, or
(b) who has
undertaken to supply related goods and services under the contract,
is entitled to a progress payment.
(2) In this
section, reference date , in relation to a construction contract, means:
(a) a date
determined by or in accordance with the terms of the contract as the date on
which a claim for a progress payment may be made in relation to work carried out
or undertaken to be carried out (or related goods and services supplied or
undertaken to be supplied) under the contract, or
(b) if the
contract makes no express provision with respect to the matter--the last day of
the named month in which the construction work was first carried out (or the
related goods and services were first supplied) under the contract and the last
day of each subsequent named month.
Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005]
NSWSC 1152: Barrett J
KEY ISSUE: cumulation of amounts in successive
payment claims are not claims in respect of same reference date
Holdmark Developers v G J Formwork [2004] NSWSC 905:
McDougall J
KEY ISSUE: whether payment claims
could only be made during currency of contract - effect of termination or
cessation of work - where no contractual provision for the occurrence of
reference dates after termination or cessation of work - whether permissible to
make a series of payment claims after termination but within relevant
limitation period
But c.f.
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport &
Anor [2004] NSWCA 394 at [62] to [66]
Quasar
Constructions v Demtech Pty Ltd [2004] NSWSC 116: Barrett
J
KEY ISSUE: the meaning of the word
“express” in s.8(2)(b) – whether it must be the case that the
terms envisaged by s.8(2)(a) are confined to express terms.
Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd
[2002] NSWCA 238 (26 July 2002) : Heydon JA, Hodgson JA, Ipp AJA
KEY ISSUES: whether a payment claim could be made even though the claim relates to work done in periods prior to the month in which the payment claim is served – whether payment claim could include entitlements to more than one progress payment
Walter Construction Group v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 (9
April 2003) : Nicholas J
KEY ISSUES: whether payment claim prematurely made – whether claim including items not relating to construction work valid – whether the Act applies – whether the issue of the payment claim was misleading or deceptive
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC
1103 (3 December 2003) : Einstein J
KEY ISSUES: whether summary judgment in respect of a payment claim under the Act should be entered – whether payment claim was a valid payment claim within s 13(2) – whether the Architect’s certificate constituted the service of a payment schedule
Kembla Coal & Coke v Select Civil & Ors [2004] NSWSC 628 (23 July 2004) :
McDougall J
KEY ISSUES: whether adjudication determination should be quashed – whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related – whether existence of reference date a jurisdictional fact – whether adjudicator erred in law by determining application on basis that amendments to Act applied – whether defects liability period commenced on or from date of practical completion – whether adjudicator erred in law by allowing in determination amount for delay costs and delay damages – whether adjudicator erred in law by allowing in determination amount for compound interest – whether relief should be withheld on discretionary grounds when points not taken before adjudicator
Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 (13 September
2004) : McDougall J
KEY ISSUES: whether adjudication determination should be quashed – whether adjudicator erred in law in his construction of s34 of the Act – whether adjudicator failed to determine defendant’s entitlement in accordance with the terms of the contract – whether adjudicator erred in reaching his determination on a basis not advanced by defendant in its payment claim and therefore not considered by plaintiff in its payment schedule – whether adjudicator committed jurisdictional error by determining the adjudication application on basis of arguments advanced by defendant for first time in that application – whether adjudicator committed jurisdictional error by not considering the plaintiff’s response to matters advanced by defendant for the first time in its adjudication application – whether relief should be withheld on discretionary grounds
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