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John Beever (Aust) Pty Ltd v Paper Australia Pty Ltd [2019] VSC 126 ||| MTECC News edition 19.5

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John Beever (Aust) Pty Ltd v Paper Australia Pty Ltd [2019] VSC 126

This decision of Lyons J appertained to an application in respect of three separate payment claims pursuant to sections 16(2) and 17(2) of the Building and Construction Industry Security of Payment Act 2002 (the “SOPA”).

Noting and discussing the summary nature of the applications, and the very limited defences available to the defendant, the Court considered the following two key questions:

  1. whether the payment claims properly identified the works they related to pursuant to SOPA section 14(2)(c), and
  2. whether a purported payment claim was properly endorsed pursuant to SOPA section 14(2)(e).

As to the first question, two of the payment claims did not identify specific work performed, but instead relied on references to relevant contract details, the period of work and the amount claimed, and details of the work were previously provided to the defendant.

The Court considered a wide range of authorities from multiple jurisdictions as to whether the requirements of SOPA section 14(2)(c) were met, and ultimately determined that the payment claims sufficiently identified the work to which it related. Adopting the test established by Philippides J in T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381, the Court held that the correct test for the identification requirement was for the payment claim to identify the construction work to enable the respondent in a reasonable way to understand the basis of the claim.

Additionally, the Court applied Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106 (as it considered Protectavale and Nepean), holding that it is appropriate to take into account the background knowledge of the parties derived from their past dealings and exchanges of information. Concluding the point, the Court helpfully distilled a short summary of key principles at paragraph [83].

The Court determined the second of the above questions in the negative. Neither the payment claim itself, nor its covering correspondence (in this case, an email), included the requisite endorsement that the payment claim was made under the SOPA. The plaintiff unsuccessfully sought to rely on the assertion that a previous email, attaching an earlier version of the payment claim which did include the endorsement, satisfied the requirement.

Andrew Blair

Congratulations to 9 MTECC members recognised in Doyles Guide 2019

The following MTECC members have been recognised in Doyles Guide 2019:

In the ‘Leading’ category for senior counsel in Victoria:

  • Hugh Foxcroft QC (and ‘Recommended’ Australia-wide)
  • Richard Manly QC
  • Francis Tiernan QC
  • Michael Whitten QC (and ‘Recommended’ Australia-wide)

In the ‘Recommended’ category for senior counsel in Victoria:

  • David Levin QC
  • Tim Margetts QC
  • Martin Scott QC

In the ‘Leading’ category for junior counsel in Victoria:

  • Andrew Downie

In the ‘Recommended’ category for junior counsel in Victoria:

  • Roman Rozenberg

Congratulations to the above MTECC members for the recognition.

MTECC member publication

MTECC member Laina Chan has published a book with John Carter titled ‘Contract and the Australian Consumer Law’. Details of the book are here.

 

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