The Qld Court of Appeal in the recent case of Ausipile Pty Ltd v Bothar Boring Tunnelling (Australia) Pty Ltd overturned a decision of a primary judge at first instance that dismissed the appellant’s summary judgment application under s78(2)(a) of the BIF Act, where the respondent failed to give a payment schedule.
The primary judge held the payment claim included a claim under two separate contracts and was therefore void.
The Court of Appeal instead found on the evidence, there was no separate contract rather a variation to an existing contract. The Court of Appeal went further to suggest the payment claim was valid whether or not it made claims under separate contracts because the scheme of the Act makes it plain (by s69(c) in particular), that a payment schedule must be given and is obliged to give reasons for withholding payment, in this instance, by stating that the claim was made under two separate contracts, which issue is to be determined at adjudication.
However, the reasoning as to the scheme of the Act was perhaps controversial because the issue of a claim made under two separate contracts is not a reason for withholding payment rather a jurisdictional issue in the adjudication context, a fundamental principle established by the NSW case of Nebax. Section 69(c) of the Act does not apply to jurisdictional matters. Although Nebax was cited by the Court of Appeal in a different context.
Despite the context, and whether or not a payment claim on its face is valid, a payment schedule should always be issued within time in response to a payment claim and clearly identify any relevant jurisdictional matters going to the validity of the payment claim. There is a clear disadvantage prescribed by the Act for any respondent that fails to issue a payment schedule within time in the adjudication context because of the prohibition on providing an adjudication response.
The Qld Court of Appeal in the recent case of Ausipile Pty Ltd v Bothar Boring Tunnelling (Australia) Pty Ltd overturned a decision of a primary judge at first instance that dismissed the appellant’s summary judgment application under s78(2)(a) of the BIF Act, where the respondent failed to give a payment schedule.
The primary judge held the payment claim included a claim under two separate contracts and was therefore void.
The Court of Appeal instead found on the evidence, there was no separate contract rather a variation to an existing contract. The Court of Appeal went further to suggest the payment claim was valid whether or not it made claims under separate contracts because the scheme of the Act makes it plain (by s69(c) in particular), that a payment schedule must be given and is obliged to give reasons for withholding payment, in this instance, by stating that the claim was made under two separate contracts, which issue is to be determined at adjudication.
However, the reasoning as to the scheme of the Act was perhaps controversial because the issue of a claim made under two separate contracts is not a reason for withholding payment rather a jurisdictional issue in the adjudication context, a fundamental principle established by the NSW case of Nebax. Section 69(c) of the Act does not apply to jurisdictional matters. Although Nebax was cited by the Court of Appeal in a different context.
Despite the context, and whether or not a payment claim on its face is valid, a payment schedule should always be issued within time in response to a payment claim and clearly identify any relevant jurisdictional matters going to the validity of the payment claim. There is a clear disadvantage prescribed by the Act for any respondent that fails to issue a payment schedule within time in the adjudication context because of the prohibition on providing an adjudication response.
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