Aquatec-Maxcon Pty Ltd v Minson Nacap Pty Ltd

[2004] VSCA 18

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Building and Construction
2. › Standard form contracts
3. › AS4303-1995
4. › Progress payments
5. › Clause 42.1
6. › Whether provision of evidence and information is condition precedent to superintendent's obligation to issue payment certificate
7. › Effect of superintendent's failure to certify within 21 days
1. Building and Construction
2. › Standard form contracts
3. › AS4303-1995
4. › Termination
5. › Clauses 44.4 and 44.10
6. › Suspension of payments pending termination
7. › Whether accrued right to progress payment revives upon termination
8. › Whether equitable set-off available after termination
1. Practice and Procedure
2. › Summary judgment
3. › Order 22 Rules of Supreme Court
4. › Whether arguable defence raised
5. › Complex questions of law
6. › Whether summary judgment appropriate where triable issues of fact and law exist
1. Practice and Procedure
2. › Pleadings
3. › Amendment of defence
4. › Inconsistent pleas in the alternative
5. › Whether defendant entitled to deny existence of contract previously admitted

Quick Take

Under clause 42.1 of AS4303-1995 (and the equivalent provision in AS2124-1992), the provision of evidence and information to support a progress claim is a condition precedent to the superintendent's obligation to issue a payment certificate, following the Brewarrina majority. The question whether an equitable set-off is available against accrued progress payment rights after termination of the contract under clause 44.4(b) remains unresolved, with the Victorian Court of Appeal declining to follow Byrne J's view that no set-off is available and noting the contrary obiter view of the Queensland Court of Appeal in QUT v Project Constructions. No formal notice of suspension is required under clause 44.4; the giving of a show cause notice under clause 44.2 is sufficient.