BUILDING AND CONSTRUCTION — Validity of a Payment Claim under the Building and Construction Industry Security of Payment Act — Where a Deed of Amendment expressed termination of lump-sum contract and parties agreed to enter a cost-plus contract — Payment Claim reference to "Costs-plus" contract — Requirements for a valid Payment Claim — No Payment Schedule served
Quick Take
1A reference in a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) to a non-existent cost-plus contract, where the works were in fact performed under a terminated lump-sum construction contract, does not invalidate the payment claim where the respondent could comprehend the claim and identify the work by reason of their knowledge of the project.
2Where a payment claim is served and no payment schedule is issued in response, the respondent cannot later challenge the validity of the payment claim on the basis that it referred to a contract that was never formalised, when the proper course was to raise that dispute in a payment schedule.
3Implied authority of agency between co-owners of residential property may be inferred from their joint execution of the construction contract, contractual terms binding each owner by the other's instructions, and the circumstance that works were delivered to their jointly owned property.
