Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd

[2017] NSWCA 337

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Payment claims
4. › Validity of payment claim
5. › Whether claimant who has assigned underlying debt can serve payment claim
6. › Whether person who 'claims to be entitled to a progress payment'
7. › Where payment claim itself asserts assignment of debt
8. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8(1), 13(1), 14(4)
1. Building and Construction
2. › Security of payment legislation
3. › Payment claims
4. › Assignment of contractual debts
5. › Effect of legal assignment on entitlement to serve payment claim
6. › Whether statutory entitlement to progress payment is assignable
7. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8(1), 13(1)
8. › Conveyancing Act 1919 (NSW), s 12
1. Assignment
2. › Legal assignment of debts
3. › Effect on assignor's rights
4. › Whether assignor can claim to be entitled to payment after legal assignment
5. › Whether assignment constitutes 'payment' of debt as between assignor and debtor
1. Appeal
2. › Leave to appeal
3. › Amount at issue less than $100,000
4. › Point of general significance
5. › Supreme Court Act 1970 (NSW), s 101(2)(r)

Quick Take

A subcontractor that has legally assigned its contractual debts to a financier cannot validly serve a payment claim under s 13(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) where the payment claim itself asserts the assignment and directs payment to the assignee. The analysis turns on the fact that the document asserted to be a payment claim itself denied that any money was owed to the claimant. The position where there has been only an equitable assignment, or some other form of security, was expressly left open.