15
Consequences of not paying claimant where no payment schedule
(1) This section
applies if the respondent:
(a) becomes
liable to pay the claimed amount to the claimant under section 14 (4) as a
consequence of having failed to provide a payment schedule to the claimant
within the time allowed by that section, and
(b) fails to pay
the whole or any part of the claimed amount on or before the due date for the
progress payment to which the payment claim relates.
(2) In those
circumstances, the claimant:
(a) may:
(i)
recover the unpaid portion of the claimed amount from the respondent, as
a debt due to the claimant, in any court of competent jurisdiction, or
(ii)
make an adjudication application under section 17 (1) (b) in relation to
the payment claim, and
(b) may serve
notice on the respondent of the claimant's intention to suspend carrying out
construction work (or to suspend supplying related goods and services) under the
construction contract.
(3) A notice
referred to in subsection (2) (b) must state that it is made under this Act.
(4) If the
claimant commences proceedings under subsection (2) (a) (i) to recover the
unpaid portion of the claimed amount from the respondent as a debt:
(a) judgment in
favour of the claimant is not to be given unless the court is satisfied of the
existence of the circumstances referred to in subsection (1), and
(b) the respondent
is not, in those proceedings, entitled:
(i) to
bring any cross-claim against the claimant, or
(ii) to
raise any defence in relation to matters arising under the
construction contract.
Dualcorp Pty Ltd v Remo
Constructions Pty Ltd [2009] NSWCA 69: Allsop J &
Macfarlan JA & Handley AJA
KEY ISSUE: claimant
seeking summary judgment for a payment claim where there is no payment schedule
– but a same payment claim has been made and adjudicated before – refuse to
enter summary judgment
Project
Architecture Pty Limited v Peter's of Kensington Pty
Limited [2008] NSWDC 24: Rolfe DCJ
KEY ISSUE: claim under Act -
Application for Summary Judgment - Relevant principles - Whether triable issue
of fact or law had been disclosed - Whether party raising triable issue of fact
required to cross-examine opposing party
Majeed v Mahmud and 4 Ors [2007]
NSWSC 1413: Brereton J
KEY ISSUE: Security of Payment –
where no payment schedule – disallowance of amounts apparently not in respect
of construction work or related services
Kell
and Rigby Pty Limited v Guardian International Properties Pty Ltd [2007] NSWSC
554: Bergin J
KEY ISSUE: consequence of failure to
provide a notice under s 17(2) of the Act before filing adjudication
application - whether filing adjudication application without providing notice
under s 17(2) of the Act amounts to an election under s 15(2)(a)(ii) of the Act
- whether the plaintiff is precluded from bringing proceedings
Rojo Building Pty Limited v Jillcris
Pty Limited [2007] NSWSC 880: McDougall J
KEY ISSUE: Payment claim served on
defendant - Failure of defendant to provide payment schedule within time
limited by the Act - Plaintiff serves notice of intention to make adjudication
application - Whether plaintiff thereby made any election - Whether open to
plaintiff to withdraw any election made
Bitannia Pty Ltd & v Parkline
Constructions Pty Ltd [2006] NSWCA 238: Hodgson JA Tobias JA
Basten JA
KEY ISSUE: whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on as a defence – whether Building Payment Act s 15(4)(b)(ii) precluded such defence
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 found that the
grant of summary judgment based on s15(2)(a)(i) is final and not interlocutory
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
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
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
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
Beckhaus v Brewarrina No 2 [2004] NSWSC 1160 (7 December
2004): Master Macready
KEY ISSUES: whether defendant entitled to liquidated damages under the contract in circumstances where plaintiff did not achieve practical completion – whether leave should be allowed for claim for liquidated damages – whether there was indemnity under s27 of the Act against liquidated damages claim
Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005]
NSWSC 284 (1 April 2005) : Palmer J
KEY ISSUES: whether Plaintiff precluded from raising existence of contract by operation of s15(4) of the Act – whether facts demonstrated genuine dispute
Vince Schokman & Anor v Xception Construction Pty Limited
and Anor [2005] NSWSC 297 (4 April 2005): Einstein J
KEY ISSUES: whether s17(2) notice of intent to apply for adjudication served out of time – whether adjudication application made out of time – whether claimant can revert to seeking judgment in curial proceedings when adjudication procedures miscarry.
Decision: Adjudication held to be void.
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