Part A - QLD
Giving BIF Act payment claims – brought to the attention of an authorised person is enough
The Qld Court of Appeal in the recent case of Oakey Pty Ltd v Canadian Solar Construction (Australia) Pty Ltd [2024] QCA 2024 upheld effective service of the contractor’s BIF Act payment claim in the sum of approx. $4m after the principal failed to issue a payment schedule within the time frame.
The background was that the contractor made a summary judgment application to the Qld Supreme Court under s77 BIF Act as a debt payable by the principal. The payment claim emailed to the principal’s representative bounced back, but others (authorised to deal with payment claims) had received the email.
The principal argued at first instance the payment claim did not comply with service requirements of the contract because it was not received by the nominated representative. This was rejected because previous payment claims were received and paid that were not issued in accordance with the contract. Consistent with s102 BIF Act, the primary judge held absent clear words in the contract, it is not assumed that only a particular mode of service is agreed.
The principal appealed to the Qld Court of Appeal. The Court of Appeal agreed with the primary judge, holding that in the absence of a contractual provision that states documents must be given in a certain manner and any other mode of service is ineffective, a document is taken to have been given if ‘received and come to the attention of a person with authority to deal with that document under the Contract’.
Although the claimant contractor was successful in this instance, all claimants are strongly advised to obtain legal advice about effective service of BIF Act payment claims in advance, particularly when the claim is of significant value.
Part B - NSW
Insurers remain nervous about defective work claims under the D&B Practitioners Act
The High Court in Pafburn Pty Limited v The Owners - Strata Plan No 84674 [2024] HCA 49 recently considered whether breaches of the statutory duties of care in s37 Design and Building Practitioners Act 2020 NSW (DBPA) were apportionable claims under the Civil Liability Act 2002 NSW (CLA) such that the liability of builders and developers for defective work claims by owners could be limited (where it is alleged the defects were contributed to by consultants and subcontractors performing the work).
The High Court simply answered “No”. The liability of builders and developers cannot be limited as the claims for breach of these statutory duties are not apportionable claims.
The background is that the owners brought proceedings against the builder and developer in the NSW Supreme Court alleging that they had both breached the statutory duty of care under section 37 of the DBPA when they performed work to a building in North Sydney, which works are alleged to be defective.
The builder and the developer pleaded that the owners' claim was an apportionable claim under the CLA and named various other consultants and subcontractors as concurrent wrongdoers.
The owners brought a motion to strike out the proportionate liability defences on the basis that the duty under section 37 of the DBPA is a personal non-delegable duty. At first instance, the primary judge held that the builder and developer could plead those proportionate liability defences and section 5Q of the CLA did not apply.
On appeal, the NSW Court of Appeal overturned that decision, finding sections 5Q & 39(a) of the CLA have the effect such that no apportionment can occur, and the proportionate liability defences were struck out.
The High Court has now endorsed the decision of the NSW Court of Appeal finding that that a party with supervisory obligations for construction work has a duty that extends to all defects arising from that construction work, regardless of whether it actually performed the work. As a result, the builder and developer each remain wholly liable to the owners subject to any cross-claims available to them against the parties who did the work.
