BUILDING AND CONSTRUCTION — payment claims — payment claim served after termination of construction contract — whether claimant may unilaterally withdraw payment claim and serve replacement claim — construction of s 13(1C) — distinction between unilateral withdrawal and withdrawal by agreement — whether residential and commercial works governed by single overarching construction contract — effect of contractor’s licensing restriction on entitlement to progress payments — adjudication determination quashed — Building and Construction Industry Security of Payment Act 1999 (NSW)
Quick Take
1[name withheld] construed, s 13(1C) of the Building and Construction Industry Security of Payment Act 1999 (NSW) permits only one payment claim to be served after termination of a construction contract. That claim cannot be unilaterally withdrawn and replaced by a later claim, and the limitation cannot be avoided by describing the later claim as a replacement. [name withheld] permitting withdrawal concern withdrawal by agreement, and the question of agreed withdrawal after termination was not decided.
2[name withheld] earlier discounts or concessions is distinct from withdrawing the payment claim in which an amount was previously claimed. The former concerns the amount sought; the latter concerns the status of the earlier claim itself.
3On the facts, a text message offering rates for 'future works' was a standing offer, so each separate request for work formed a separate contract. That meant there was no single overarching 'construction contract' spanning residential and commercial works. A contractor relying on s 98 of the Home Building Act 1989 (NSW) as a subcontractor must show it worked for a licensed builder on the relevant project.
