The Court adopted the special referee's report, holding that a claimant is entitled to suspend work under s 29 of the Building and Construction Industry Security of Payment Act 2002 (Vic) notwithstanding that the payment claim includes an excluded amount, provided the statutory criteria in s 16(1) are met (ie the respondent failed to provide a payment schedule and failed to pay the claimed amount by the due date). The right to serve a notice of intention to suspend under s 16(2)(b) is not contingent on the claimant first commencing court proceedings or adjudication under s 16(2)(a); those rights are discretionary and not conjunctive. The Court also held that a respondent's purported termination of a construction subcontract was invalid both because the claimant's suspension was lawful under the Act and because the respondent failed to comply with the contractual notice requirements for termination, and that a variations clause and a 'no oral waivers' clause in the subcontract had been waived by the parties' conduct, entitling the claimant to payment for variation work performed outside the contractual variation procedure.
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