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14 Payment schedules
(1) A person on
whom a payment claim is served (the respondent ) may reply to the claim
by providing a payment schedule to the claimant.
(2) A payment
schedule:
(a) must identify
the payment claim to which it relates, and
(b) must indicate
the amount of the payment (if any) that the respondent proposes to make (the
scheduled amount ).
(3) If the
scheduled amount is less than the claimed amount, the schedule must indicate why
the scheduled amount is less and (if it is less because the respondent is
withholding payment for any reason) the respondent's reasons for withholding
payment.
(4) If:
(a) a claimant
serves a payment claim on a respondent, and
(b) the respondent
does not provide a payment schedule to the claimant:
(i)
within the time required by the relevant construction contract, or
(ii) within
10 business days after the payment claim is served,
whichever
time expires earlier,
the
respondent becomes liable to pay the claimed amount to the claimant on the due
date for the progress payment to which the payment claim relates.
Perform
(NSW) Pty Ltd v MEV-AUS Pty Ltd & Anor [2009]
NSWCA 157: Giles JA McColl JA Young JA
KEY ISSUE: payment schedule could
"indicate" reasons for nil valuation by referring to previous payment
schedule - in any event adjudicator's view that it could not did not make
adjudication void - what is indicated in a payment schedule is for adjudicator
to determine - did not fail to comply with basic and essential requirements of
valid adjudication - reliance on back charge claims as set-off payment schedule
could "indicate" reasons for nil valuation by referring to previous
payment schedule - in any event adjudicator's view that it could not did not
make adjudication void - what is indicated in a payment schedule is for
adjudicator to determine
Thiess Pty Ltd & Anor v Lane
Cove Tunnel Nominee Company Pty Ltd & Anor [2009]
NSWCA 53: Giles JA Tobias JA Handley AJA
KEY ISSUE: payment schedule - whether
contract required a time for provision of payment schedule - contractual
payment schedule replied to contractual progress payment claim - not to
statutory payment claim - stated time was not for provision of statutory
payment schedule
Baulderstone Hornibrook Pty Ltd v
Queensland Investment Corporation [2007] NSWCA 9: Giles JA Tobias JA
Basten JA
KEY ISSUE: whether a payment schedule
is properly provided if it is not referred to in a cover letter — whether a
payment schedule prepared and signed by an agent without express authority can
be said to have been provided by the principal
Falgat Constructions Pty Limited v Equity Australia
Corporation Pty Limited [2006] NSWCA 259: Handley JA Hodgson JA Hunt AJA
KEY ISSUE: Time limit for provision of payment schedules - Whether adjudication application can be made if payment schedule provided outside the time limit - Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation - Effect of s.29 of the Acts Interpretation Act 1901 (Cth) - Whether "provide" means anything different from "serve" in the Act, and is governed by s.31 of that Act.
Springs
Golf Club Pty Ltd v Profile Golf Pty Ltd [2006] NSWSC 344: Rein AJ
KEY ISSUE: what constitutes a valid
payment schedule under the Act
Acclaim
Building Management Pty Ltd v Loewenthal [2006] NSWDC 29: Johnstone DCJ
KEY ISSUE: what constitutes an
“indication” of the amount payable in a payment schedule?
Lucas
Stuart Pty Limited v Council of the City of Sydney [2005] NSWSC 840: Einstein J
KEY ISSUE: Plaintiff builder and
defendant local government council-Builder serves payment claim on
council-Council fails to serve a payment schedule on builder within specified
time-Builder seeks summary judgment-Council claims payment claim served in
context of misleading and deceptive conduct-Council claims builder estopped
from relying on payment claim-No arguable case-Summary judgment awarded
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
Paynter Dixon Constructions Pty Limited v JF & CG Tilston
Pty Limited and Anor [2003] NSWSC 869 (25 September 2003): Bergin J
KEY ISSUES: whether adjudicator validly appointed – whether adjudicator has jurisdiction to determine a dispute in relation to a payment claim that included a contentious claim for damages or loss of profits for alleged wrongful repudiation of a contract
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
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
Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC
716 (13 August 2004): McDougall J
KEY 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
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
Property & Equity Developments v Parnell [2004] NSWSC 1035
(12 November 2004): Campbell J
KEY ISSUES: whether payment claim comprising 4 invoices valid
Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232 (9
December 2004): McDougall J
KEY ISSUES: whether letter in law sufficient to be payment schedule – whether “nothing” an amount for purposes of s14(2)(b) – whether letter “provided” within meaning of s14(1)
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
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
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