The Court held that consent orders resolving an interlocutory application for summary judgment under s 15(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) did not create an enforceable contractual obligation preventing the claimant from subsequently seeking judgment in advance of the cross-claim, particularly given the inherent uncertainty of interlocutory agreements and the Court's residual discretion over consent orders. Even if such a contractual obligation existed, s 34 of the Act would render it void as an agreement excluding or restricting the operation of the Act, including the procedural bar on cross-claims under s 15(4). The Court also held that brief invoice narratives identifying glazing work by building level sufficiently identified construction work for valid payment claims under s 13(2), and that an email rejecting one invoice but failing to address a second invoice did not constitute a payment schedule for that second invoice.
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