Recently the NSW Supreme Court in Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534 considered a challenge to the validity of a payment claim adjudicated under the NSW Act in the claimant’s favour for approx. $2.6m. At issue before the Court was whether the payment claim was invalid because it claimed payment for work done under more than one contract.
The decision is interesting because the NSW Court was forced to consider the recent Qld Court of Appeal decision in Ausipile (see https://www.troylegal.com.au/articles/payment-schedules-a-critical-step-not-to-be-missed) which held that a payment claim is valid, if on its face it appears to claim for work done under one contract, even if that is ultimately proved incorrect. The NSW Court rejected that contention suggesting whether a payment claim seeks payment for work done under more than one contract goes to the fundamental validity of the claim under s13(1) of the NSW Act and the jurisdiction of an Adjudicator, and is not dependant on the content of a payment schedule. Unsurprisingly, the NSW Court held the obiter comments to the contrary in Ausipile were plainly wrong and was not followed. The Court considered the payment claim and structure of the Subcontract in question finding the payment claim did seek payment for work done under multiple work orders under an umbrella type Subcontract which stated that each new work order created a new contract.
There was no dispute the payment claim sought payment for work performed under multiple work orders, therefore the Court held the payment claim was invalid and the Adjudicator’s decision void.
