9 Amount of progress
payment
The amount of a progress
payment to which a person is entitled in respect of a construction contract is
to be:
(a) the amount
calculated in accordance with the terms of the contract, or
(b) if the
contract makes no express provision with respect to the matter, the amount
calculated on the basis of the value of construction work carried out or
undertaken to be carried out by the person (or of related goods and services
supplied or undertaken to be supplied by the person) under the contract.
Roseville
Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320:
Brereton J
KEY ISSUE: this section does not
create a right to remuneration for construction work. This section refers to
the contract which then provides a starting point to determine rights under the
Act
Plaza
West Pty Ltd v Simon's Earthworks (NSW) Pty Ltd & Anor
[2008] NSWCA 279
In this case, amongst other things, Hodgson J held that:
- the phrase “calculated in accordance with the terms of the contact” in s 9(a) of the Building and Construction Industry Security of Payment Act 1999 does not engage contract mechanisms determining what is due under the contract, independently of calculations referable to the work performed;
- Contractors are not deprived of entitlement to payment under the Act because a condition precedent such as obtaining of a superintendent’s certificate, has not been satisfied; and contractors are not ipso facto entitled to payment because of the operation of a deeming provision
- See also Transgrid v Siemens Limited [2004] NSWCA 395 and John Holland Pty Limited v Road and Traffic Authority of New South Wales [2007] NSWCA 19
Minister for Commerce v Contrax Plumbing and Ors [2004] NSWSC 823: McDougall J
KEY ISSUE: Hodgson JA comments that although the
Act refers to the contract, a contract provision that purports to cap the
maximum value of the contract in order to deny a Claimant the right to value
work may be in breach of section 34
Quasar
Constructions v Demtech Pty Ltd [2004] NSWSC 116:
Barrett J
KEY ISSUE: the adjudicator has only
jurisdiction to determine amount of progress payment in the method prescribed
by the Act and jurisdictional error arises if an adjudicator is seen to have
embarked on some course that is foreign or irrelevant to this statutory task.
Transgrid v Walter Construction Group [2004] NSWSC 21 (6 February 2004) :
McDougall J
KEY ISSUES: whether jurisdiction to review an adjudicator’s determination – whether there was jurisdictional error of law – whether Superintendent’s certification binding on adjudicator – whether there was denial of natural justice
Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 (13 September
2004) : McDougall J
Transgrid v Siemens Ltd & Anor [2004] NSWCA 395 (3 November 2004) : Mason P,
Giles JA, Hodgson JA
KEY ISSUES: whether adjudicator’s determination reviewable
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