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 raising that the claim was made under two separate contracts to be determined at adjudication. However, the reasoning as to the scheme of the Act is somewhat 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, the Court made no mention of that fundamental principle. This is not to say a payment schedule need not be issued, to the contrary, there is a clear disadvantage faced any respondent that fails to issue a payment schedule which cannot be overstated, it simply need not include matters going to the jurisdiction of an adjudicator.
