The Commercial Bar Association of Victoria Inc. A0120851O
The Supreme Court of Victoria has held that payment claims under the Building and Construction Industry Security of Payment Act 2002 (Vic) served before a “reference date” are invalid, notwithstanding a contractual deeming provision to the contrary.
An item of work in a payment claim which has not been paid may be claimed again and again as a component of successive payment claims provided the payment claim itself is valid. The limitation period in s 14(4)(b) of the Security of Payment Act only applies to the payment claim.
The Court of Appeal has found that a judge’s exercise of the discretion to construe a recourse provision on an ‘as if final’ basis on an application for an interlocutory injunction to restrain recourse to performance securities miscarried.
The High Court has significantly reduced the scope of the doctrine of quantum meruit in so far as it applies to work undertaken pursuant a contract which has been discharged. In such a case, quantum meruit is only available for completed work but for which a contract entitlement has not crystallised at discharge.
The NSW Court of Appeal has clarified the limits of informality in payment schedules and emphasised the importance of identiying the reasons for the dispute with sufficient particularity to set the boundaries for any adjudication.
The Supreme Court of NSW has found that a statutory authority owed a tortious duty of care in providing information and advice to a developer and considered the evidence required to demonstrate that, but for the misstatement, the developer would have undertaken a more profitable development.
The recent decision of the NSW Court of Appeal in Seymour Whyte v Ostwald confirms that the position in NSW conflicts with the Victorian position on the question of whether the security of payments regime applies to companies in liquidation.
The Court of Appeal has upheld a VCAT decision in which owners were ordered to pay a builder $660,526.41 by way of a quantum meruit following the termination of a building contract, a sum which was considerably more than the builder might have recovered in a damages claim under the contract.
The Supreme Court has emphasised the primacy of the building contract in granting a right to make a claim for final payment and confirmed the requirement for an adjudicator to be satisfied as to the ‘value’ of the works, notwithstanding that alleged defects that were subsequently identified existed at the time of a previous adjudication.
A contractual provision which had the effect of excluding liability for damages for misleading or deceptive conduct under s 236 of the Australian Consumer Law if the complainant failed to give a notice of the proposed claim within a prescribed time limit was found to be unenforceable. Such a provision was also found to be ineffective in a “no transaction” case.
A “revised” payment claim, for a different sum, served one day after another payment claim had been served was invalid because it was held to be a second payment claim and therefore in contravention of s 14(8) of the Building and Construction Industry Security of Payment Act 2002 (Vic) which prohibits more than one payment claim being served in respect of the same reference date.
Court upholds VCAT decision to allow builder to recover on quantum meruit basis (after wrongful repudiation by owner), based exclusively on evidence of quantity surveyor; and finds that s 38 of the Domestic Building Contracts Act 1995 (Vic) does not apply to quantum meruit claims.
Building and Construction Industry Security of Payment Act 1999 (NSW) – Adjudication determination quashed – failure to give adequate reasons
The Supreme Court of Victoria has found that a one-off special purpose company, incorporated for the sole purpose of carrying out a property development, was “in the business of building residences”, and therefore the Security of Payment Act applied to the dispute.