Pearl Hill Pty Ltd v Concorp Construction Group (Vic) Pty Ltd

[2011] VSCA 99

Victorian Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Leave to appeal
3. › Interlocutory or final order
4. › Summary judgment on payment claim under security of payment legislation
5. › Whether judgment finally disposes of rights of parties
6. › County Court Act 1958 (Vic), s 74(2D)
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 16, 47
1. Building and Construction
2. › Security of payment
3. › Payment claims
4. › Entitlement to make payment claim
5. › Whether person who undertakes to carry out construction work under contract entitled to claim
6. › Whether only person who physically performs work may claim
7. › Building and Construction Industry Security of Payment Act 2002 (Vic), ss 1, 3(1), 9(1), 14(1)
1. Practice and Procedure
2. › Costs
3. › Indemnity costs
4. › Discontinuance of appeal
5. › Appeal without merit and incompetent
6. › Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 64.14(4)
1. Practice and Procedure
2. › Stay of execution
3. › Pending appeal
4. › Special or exceptional circumstances required
5. › Prospects of success on appeal
6. › Risk of appeal being rendered nugatory

Quick Take

A judgment obtained under s 16 of the Building and Construction Industry Security of Payment Act 2002 (Vic) for an unpaid payment claim is interlocutory, not final, because it does not finally dispose of the rights of the parties under the construction contract. Leave to appeal is therefore required under s 74(2D) of the County Court Act 1958 (Vic). Under the Act, the contracting party who undertakes to carry out construction work may make a payment claim and recover progress payments, whether the works are performed by the contracting party itself or by another on its behalf. This differs from the position that may apply in NSW, where Hodgson JA in Nepean Engineering suggested such a judgment would be final.