Kitchen Xchange v Formacon Building Services

[2014] NSWSC 1602

Supreme Court of NSW

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Interrogate

Catchwords

1. Building and Construction
2. › whether payment claim is valid
3. › where claimant served two payment claims in relation to the same reference date
4. › whether payment claim served in breach of s 13(5) is valid
5. › whether there was a unilateral withdrawal of a payment claim
6. › where withdrawal not consensual
7. › where nothing said or done to indicate claimant no longer relied on payment claim
8. › application of s 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
1. Building and Construction
2. › whether service of payment claim valid
3. › where payment claim not accompanied by supporting statement in the form prescribed by regulations
4. › meaning of “must not”
5. › whether requirement to include supporting statement is jurisdictional
6. › whether s 13(7) intended to invalidate service of the payment claim
7. › application of s 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
1. Building and Construction
2. › adjudication determinations
3. › whether as a matter of discretion to nonetheless withhold relief
4. › whether first defendant led into its actions by conduct of the plaintiff
5. › whether to withhold relief as amount of claim relatively small and within jurisdiction of Local Court

Quick Take

The Court held that a third payment claim served in respect of the same reference date as a prior unwithddrawn second payment claim contravened s 13(5) of the Security of Payment Act and was invalid, depriving the adjudicator of jurisdiction. The Court further held that s 13(7), requiring a head contractor's payment claim to be accompanied by a prescribed supporting statement, is jurisdictional — non-compliance invalidates the service of the payment claim rather than the claim itself. The Court left open whether unilateral withdrawal of a payment claim is possible in principle, but held that on the facts there was no withdrawal of the second payment claim, as nothing was said or done to indicate the claimant no longer relied on it.