› contractor serves payment schedule disputing validity of payment claim
› subcontractor serves another payment claim without withdrawing the earlier claim
› s13(1C), Building and Construction Industry Security of Payment Act 1999
› contractor now says earlier payment claim was valid
› whether contractor can ‘approbate and reprobate’
› s13(1C) applies to preclude later payment claim.
Quick Take
1Under s 13(1C) of the Building and Construction Industry Security of Payment Act 1999 (NSW), only one payment claim may be served following termination of a construction contract; a second payment claim served without withdrawing the first is precluded by the section regardless of whether the respondent challenged the validity of the first claim in its payment schedule.
2Where a party affirms a contract following the other party's repudiatory conduct, the affirming party may still terminate based on a later repudiation that is merely temporally distinguishable — occurring on a separate occasion — without requiring the later breach to involve a different obligation or different means of breach (applying GEC Marconi Systems v BHP Information Technology, Ogle v Comboyuro Investments, Carr v J A Berriman).
3The doctrine of approbation and reprobation does not operate to override the statutory terms of s 13(1C); where the section applies on its terms to preclude a further payment claim, there is no discretion to disapply it based on the respondent's prior inconsistent position.
Case Details
Citation[2023] NSWSC 723
CourtNSWSC
JurisdictionNew South Wales
Unlock so much more with Barrister AI
The full text is available to signed-in members, including the 1 later case that cites this judgment.
