John Beever (Aust) Pty Ltd v Roads Corporation [2018] VSC 635

Facts: John Beever (Aust) Pty Ltd (Beever) and Roads Corporation (VicRoads) entered a construction contract in respect of strengthening works to the Wallen Road Bridge in Hawthorn. On 11 April 2017, Roads Corp certified that practical completion of the works had been achieved on 22 March 2017. At the earliest, the Defects Liability Period (DLP) under the construction contract expired in March 2018. On 28 September, a representative of Beever sent a payment claim (PC 16) under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘SOP Act’) to VicRoads seeking a progress payment of $290,146.61. VicRoads did not serve a payment schedule in response to PC 16.

Beever made a summary judgment application (on the basis that VicRoads did not serve a payment schedule) in the sum of the progress payment as a debt due recoverable under the SOP Act s 16(2)(a)(i).

Issues: The questions arising for determination on Beever’s summary judgment application were whether VicRoads had any real prospect of success in arguing that PC 16:

1. Was not supported by a reference date;
2. Did not satisfy the formal requirements of the SOP Act; and
3. Included an amount which was an ‘excluded amount’ under the SOP Act.

Held: Digby J found that VicRoads had a real prospect of success against Beever’s claim, which meant that it was not appropriate for summary judgment. His Honour found that:

• VicRoads had ‘raised and rendered a number of viable arguments for impugning the validity of PC 16 for want of a reference date’.
• Two components (namely the amount of $52,149.14 and the item ‘Provision of As-Constructed Drawings’) in Beever’s PC 16 payment claim were non-compliant with s 14(2) of the SOP Act. The relevant question was whether PC 16 evinced ‘a degree of “precision and particularity” that is “reasonably sufficient to appraise the parties of the real issues in the dispute”’.
• Digby J was not persuaded that VicRoads had no real prospect of success in establishing that PC 16 progress claim induces an amount excluded under the SOP Act, finding that VicRoads’ arguments were ‘cogent and viable’.

Martin Scott QC

MTECC end of year function

We are pleased to invite all of our subscribers to MTECC’s annual end of year function, featuring an address by the Honourable Justice Riordan, Principal Judge of the Victorian Supreme Court’s Commercial List.

Date: Wednesday 13 November 2019
Location: Melbourne Bowls Club, Flagstaff Gardens, West Melbourne
Time: 6:00PM-8:30PM

Please RSVP by email to miriam@chancery.com.au by 30 October 2019 for catering purposes.

MTECC appointees recognised

MTECC has recently updated its website to recognise former members who have been appointed to Australian Courts and Tribunals. Profiles on each MTECC appointee can be accessed here or at the links below:

• The Honourable Justice John Dixon
• The Honourable Justice John Digby
• Mr Andrew Kincaid
• The Honourable Justice Robert Harper
• Judge Caroline Kirton
• Lord Chief Justice Michael Whitten

MTECC once again congratulates its former members on their respective appointments.

MTECC member Michael Sharkey presenting ICU Legal Seminar on 22 November 2019

MTECC member Michael Sharkey is presenting on “Ethical Issues in Engaging Expert Witnesses” on 22 November 2019. More information can be found here.