Part 3 - Procedure for recovering progress payments
Division 1 - Payment claims and payment schedules
(1)
A person referred to in section 8 (1) who is or who claims to be entitled
to a progress payment (the claimant ) may serve a payment claim on the
person who, under the construction contract concerned, is or may be liable to
make the payment.
(2)
A payment claim:
(a)
must identify the construction work (or related goods and services) to
which the progress payment relates, and
(b)
must indicate the amount of the progress payment that the claimant claims
to be due (the claimed amount ), and
(c)
must state that it is made under this Act.
(3)
The claimed amount may include any amount:
(a)
that the respondent is liable to pay the claimant under section 27 (2A),
or
(b)
that is held under the construction contract by the respondent and that
the claimant claims is due for release.
(4)
A payment claim may be served only within:
(a)
the period determined by or in accordance with the terms of the
construction contract, or
(b)
the period of 12 months after the construction work to which the claim
relates was last carried out (or the related goods and services to which the
claim relates were last supplied),
whichever is the later.
(5)
A claimant cannot serve more than one payment claim in respect of each
reference date under the construction contract.
(6)
However, subsection (5) does not prevent the claimant from including in a
payment claim an amount that has been the subject of a previous claim.
Dualcorp Pty Ltd v Remo
Constructions Pty Ltd [2009] NSWCA 69: Allsop J &
Macfarlan JA & Handley AJA
KEY ISSUE: where a payment claim has
been adjudicated, whether the claimant is entitled to make the same claim for a
second time (thus entitled to a second adjudication)
The
University of Sydney v Cadence Australia Pty Limited & Anor
[2009] NSWSC 635: Hammerschlag J
KEY ISSUE: the meaning of “a payment
claim” in S13(1) and whether S13(6) allows a payment
claim for an amount which has previously been claimed and which has been
adjudicated upon and rejected.
Perform
(NSW) Pty Ltd v Mev-Aus Pty Ltd trading as
Novatec Construction Systems [2009] NSWSC 416: Rein J
KEY ISSUE: whether a claimant is
entitled under the Act to lodge a second payment claim for works that have
already been previously claimed
BITANNIA
PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238: Hodgson
JA, Tobias JA & Basten JA
KEY ISSUE: there is no requirement
that the claimant had a bona fide belief in its entitlement to the moneys
claimed for a valid payment claim under s 13, and a key element in the supposed
condition of “good faith” is that the claim is without merit, a matter
indisputably within the powers of the adjudicator to determine.
Energy
Australia v Downer Construction (Australia) Pty Ltd and 2 ors [2006] NSWSC 52:
Nicholas J
In this case, Nicholas J discussed
the level of details required by S13 in a payment claim.
Brookhollow Pty Ltd v R and r Consultants Pty Ltd and
Anor [2006] NSWSC 1: Palmer J
In this case, Palmer J discussed the requirements for validity of a payment claim in the context of Nepean (see below). His Honour also found that a defence in bar to a payment claim founded on s.13(4) or (5) must be raised in a timeously served payment schedule.
Nepean
Engineering Pty Ltd v Total Process Services Pty Ltd (In Liquidation) [2005]
NSWCA 409: Hodgson JA, Santow JA &
Ipp JA
The Court of Appeal affirmed its view in Coordinated Construction Co. Pty. Ltd. v. Climatech (Canberra) Pty. Ltd. & Ors. [2005] NSWCA 229 and held that compliance with S13(2)(a) is not a basic and essential requirement for a valid payment claim unless the failure is patent on its face (and this will not be the case if the claim purports in a reasonable way to identify the particular work in respect of which the claim is made).
Coordinated Construction Co. Pty. Ltd. v. Climatech
(Canberra) Pty. Ltd. & Ors. [2005] NSWCA 229
Relevantly, Hodgson J and Basten JA held that the phrase “identify” in s13(2)(a) means that the relevant construction work or related goods and services must be identified sufficiently to enable the respondent to understand the basis of the claim.
Clarence
Street Pty. Limited v. ISIS Projects Pty. Limited [2005] NSWCA 391
The Court of Appeal in this case endorsed the view of Palmer J in Multiplex Constructions Pty ltd v Luikens & Anor [2003] NSWSC 1140 in relation to question of “what a payment schedule should show”.
Lifestyle
Retirement Projects No 2 v Parisi Homes [2005] NSWSC
705: Campbell J
KEY ISSUE: whether service of Payment
Claim within 12 months after construction work was last carried out is a
"basic and essential requirement" to validity of an adjudication
determination
Energetech v Sides Engineering and Anor
[2005] NSWSC 801: McDougall J
KEY ISSUE: whether basic and
essential requirement of service of payment claim includes compliance with s
13(4) - whether failure to comply with s 13(4) renders adjudication
determination void
Hawkins Construction v Mac's Industrial Pipework [2001]
NSWSC 815 (18 September 2001): Windeyer J
KEY ISSUES: whether the Act applied to sub-contracts when head contracts precede the Act – whether payment claim complied with s 13(2)(a) & (c) of the Act – whether statutory demand signed by employed solicitor of firm acting for creditors effective
Jemzone v Trytan [2002] NSWSC 395 (7 May 2002): Austin J
KEY ISSUES: whether statutory demand should be set aside as there are genuine dispute or offsetting claim – whether there is entitlement to make final claim under the Act – whether claim complied with s 13 of the Act
Hawkins Construction (Australia) Pty Ltd v Mac's Industrial
Pipework Pty Ltd [2002] NSWCA 136 (9 May 2002) : Handley JA, Stein JA, Davies
AJA
KEY ISSUES: whether the Act applied to contract entered into after commencement of the Act – whether payment claim satisfied requirement of the Act – whether employed solicitor may sign a statutory demand on behalf of client
Tooma v Eaton [2002] NSWSC 514 (11 June 2002): Master
Macready
KEY ISSUE: whether absence of a payment schedule under s 14 of the Act meant that there was no genuine dispute to a statutory demand based on a payment claim made under s 13 of the Act
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
Beckhaus v Brewarrina Council [2002] NSWSC 960 (18 October
2002) : Macready AJ
KEY ISSUES: whether claim under the Act can be made at same time with progress claim under the contract in one document
Walter Construction Group Ltd 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
Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd
[2003] NSWSC 365 (5 May 2003): Nicholas J
KEY ISSUES: whether adjudicator acted ultra vires in adjudication and determination – whether adjudicator’s determination a nullity – whether payment claim is foundation of jurisdiction of adjudicator
Leighton Contractors Pty Limited v Campbelltown Catholic
Club Limited, Campbelltown Catholic Club Limited v Leighton Contractors Pty
Limited [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
Multiplex Constructions Pty Ltd v Luikens and Anor [2003]
NSWSC 1140 (4 December 2003) : Palmer J
KEY ISSUES: whether the determination of an adjudicator is open to judicial review – whether an adjudication may be reviewed for error law on the face of the record – what must be disclosed by a payment schedule – whether adjudicator must assess value by inspection - whether whole determination must be quashed
Isis v Clarence [2004] NSWSC 73 (23 February 2004): Master
Macready
KEY ISSUES: whether payment claims could be made between practical completion and the expiration of the defects liability period
Consolidated Constructions Pty Ltd v Ettamogah Pub [2004]
NSWSC 110 (11 March 2004): McDougall J
KEY ISSUES: whether s7(2)(a) applicable – whether plaintiff may serve a payment claim under s13 – whether progress payment has same meaning in Act as it does under the construction contract
John Holland Pty Limited v Cardno MBK (NSW) Pty Limited &
Ors [2004] NSWSC 258 (20 April 2004): Einstein J
KEY ISSUES: whether adjudication application should be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim
Emergency Services Superannuation Board v Davenport & Anor
[2004] NSWSC 697 (22 July 2004) : McDougall J
KEY ISSUES: whether adjudication determination should be quashed where adjudicator determined claim on basis explicitly disavowed by defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so – whether determination vitiated by denial of natural justice – whether determination vitiated by adjudicator’s alleged failure to consider relevant provision of contract and plaintiff’s submissions thereon – whether payment claim compiled with s13(2)(a) of the Act – whether discretion to grant prerogative relief should be exercised
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
Isis Projects v Clarence Street [2004] NSWSC 714 (13 August
2004) : McDougall J
KEY ISSUES: whether plaintiff entitled to recover amounts unpaid as a debt – whether progress claims identified work by single line item references – whether progress claims supported by sufficient evidence
Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC
716 (13 August 2004) : McDougall JKEY ISSUES: whether defendant has arguable defence to preclude plaintiff from obtaining summary judgment where document alleged to be payment schedule did not indicate the payment defendant intended to make – whether defendant provided payment schedule for purposes of s14 – whether question to be determined on final hearing and not by way of summary judgment – whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim – whether estoppel defence prohibited by s34 – whether question to be resolved on application for summary judgment
Holdmark Developers v G J Formwork [2004] NSWSC 905 (24
September 2004): McDougall J
KEY ISSUES: whether adjudication determination should be quashed – whether more than one payment claim made in respect of the one reference date – whether payment claims could only be made during currency of contract – whether permissible to make a series of payment claims after termination but within relevant limitation period
Estate Property Holdings Pty. Limited v. Barclay Mowlem
Construction Limited [2004] NSWCA 393 (3 November 2004) : Mason P, Giles JA,
Hodgson JA
KEY ISSUES: whether construction work is the work required by the contract, the work for which payment is claimed or each item of work for which payment is claimed
Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport &
Anor. [2004] NSWCA 394 (3 November 2004) : Mason P, Giles JA, Hodgson JA
KEY ISSUES: whether certiorari available – whether other relief available in respect of judgment, including stay of execution
Bell Partners v Kann Finch [2004] NSWSC 1034 (8 November
2004) : Master Harrison
KEY ISSUES: whether respondent entitled to a progress claim pursuant to s13 of the Act – whether progress claim effective under provisions of the Act
Property & Equity Developments v Parnell [2004] NSWSC 1035
(12 November 2004) : Campbell J
KEY ISSUES: whether payment claim comprising 4 invoices valid
Co-ordinated Construction Co Pty Limited v Climatech
(Canberra) Pty Ltd [2005] NSWSC 312 (13 April 2005): Bergin J
KEY ISSUES: whether the claims under the contract as a result of the awarding of extensions of time were “variation” claims under the contract – whether claims for delay damages consequent upon extensions of time are able to be claimed in a payment claim under the Act and awarded in a determination under the Act
Taylor Projects Group Pty Limited v Brick Dept Pty Limited
& Ors [2005] NSWSC 439 (5 May 2005): Einstein J
KEY ISSUES: whether the payment claim by way of a facsimile sent at 10:41pm was served on the day it was faxed – whether there was constructive resubmission of payment claim – whether adjudication determination failed to satisfy one of the essential conditions laid down by the Act
Property & Equity Developments v Parnell [2004] NSWSC 1035
(12 November 2004) : Campbell J
KEY ISSUES: whether payment claim comprising 4 invoices valid
Coordinated Construction Co v J M Hargreaves & Ors [2005]
NSWSC 77 (22 February 2005): McDougall J
KEY ISSUES: whether determination void because adjudicated amount included amounts assumed (but not decided) not to be “for” construction work – whether determination in breach of the Act is unlawful – whether payment claim served on or from reference date
Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339 (29 April 2005) :
Palmer J
KEY ISSUES: whether payment claim consisting of 3 tax invoices faxed at the same time was 3 payment claims or 1 payment claim
Reiby Street v Winterton [2005] NSWSC 545 (16 June 2005):
Master Macready
KEY ISSUES: whether there was apprehended bias in the nomination of adjudicator – whether party is estopped from now seeking an order in the nature of certiorari – whether there was a waiver to the right of objection on the basis of apprehended bias
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