Grave v Blazevic Holdings

(2010) 79 NSWLR 132; [2010] NSWCA 324

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment
3. › Payment claims
4. › Person on whom payment claim may be served
5. › Whether person must be party to construction contract
6. › Whether defence of not being party to contract foreclosed by s 15(4)(b)(ii)
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 13, 14, 15, 32
1. Statutory Interpretation
2. › Construction of statute
3. › Purposive interpretation
4. › Meaning of 'person who, under the construction contract concerned, is or may be liable to make the payment'
5. › Meaning of 'defence in relation to matters arising under the construction contract'
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(1), 15(4)(b)(ii)
1. Practice and Procedure
2. › Default judgment
3. › Setting aside
4. › Whether arguable defence shown
5. › Whether defence foreclosed by statute

Quick Take

A payment claim under s 13(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) can only be validly served on a person who is a party to the relevant construction contract. A defence that the defendant is not a party to the construction contract is not a defence 'in relation to matters arising under the construction contract' within s 15(4)(b)(ii), and is therefore not foreclosed by that provision. The question of whether the definition of 'construction contract' extends to restitutionary claims was left open.