Supreme Court

New South Wales

Case Title: Cromer Excavations Pty Ltd v Cruz Concreting Services Pty Ltd

Medium Neutral Citation: [2011] NSWSC 51

Hearing Date(s): 16 December 2010

Decision Date: 17 February 2011

Jurisdiction:

Before: Davies J

Decision: The parties are to bring in Short Minutes of Order to reflect the reasons.

Catchwords: BUILDING AND CONSTRUCTION - progress payments - payment plan served on Defendants - failure of Defendants to provide payment schedule within time limited by Building and Construction Industry Security of Payment Act 1999 – Plaintiff serves notice of intention to make adjudication application - Plaintiff thereafter takes proceedings for debt – whether Plaintiff made an election. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005

Uniform Civil Procedure Rules

Cases Cited: Kell & Rigby Pty Limited v Guardian International Properties Pty Ltd [2007] NSWSC 554

Nepean Engineering Pty Ltd v Total Process Services Pty. Ltd. (In Liq) (2005) 64 NSWLR 462

Okaroo Pty Limited v Vos Construction and

Joinery Pty Limited & Anor [2005] NSWSC 45

Rojo Building v Jillcris [2006] NSWSC 649

Rojo Building Pty Limited v Jillcris Pty Limited [2006] NSWSC 309

Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWSC 880

Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWCA 68

Schokman v Xception Construction Pty Ltd [2005] NSWSC 297

Texts Cited:

Category: Principal judgment

Parties: Cromer Excavations Pty Ltd (Plaintiff)

Cruz Concreting Services Pty Ltd (First Defendant)

Jose da Silva (Second Defendant)

Representation

- Counsel: Counsel:

J S Whyte (Plaintiff)

B Wilson (Defendants)

- Solicitors: Solicitors:

Mills Oakley Lawyers (Defendants)

File number(s): 2010/257067

Publication Restriction:

Judgment

1 The Plaintiff, Cromer Excavations Pty Ltd, carries on the business of concreting, excavation and site preparation work. It claims to have carried out work for Cruz Concreting Services Pty Ltd between October 2009 and March 2010 for which it delivered tax invoices to Cruz. The invoices have not been paid and the present proceedings have been instituted for recovery by Cromer of what it asserts is owed by Cruz on those invoices. A claim is also made against the Second Defendant as guarantor of Cruz's liabilities.

2 The Plaintiff now seeks summary judgment. This is resisted by the Defendants who say they have a number of arguable defences which should not be determined on a summary judgment application.

Background

3 On or about 28 September 2009 Cruz requested Cromer to submit its quotation in respect of demolition and excavation works concerning the grandstand and kiosk upgrade at Rushcutters Bay Park.

4 On 30 September 2009 Cromer submitted its quotation which was by way of providing hourly rates for disposal of material and equipment hire.

5 Cromer attended the site on about 7 October 2009 and commenced work in accordance with the quotation. Cromer continued to carry out the work pursuant to the quotation up to and including 13 March 2010.

6 At a time not specified but certainly by 19 April 2010 Cromer issued 6 invoices to Cruz. These invoices are as follows:

11.1 Invoice 395 dated 30 October 2009 in the amount of $23,902.56.

11.2 Invoice 405 dated 30 November 2009 in the amount of $34,728.11.

11.3 Invoice 415 dated 22 December 2009 in the amount of $20,192.48.

11.4 Invoice 428 dated 25 January 2010 in the amount of $37,871.47.

11.5 Invoice 437 dated 22 February 2010 in the amount of $42,117.79.

11.6 Invoice 499 dated 16 March 2010 in the amount of $28,609.19.

7 The Second Defendant, Mr Jose da Silva, a Director of Cruz, executed a guarantee o n 11 February 2010 (the reason it was executed on this date is not explained) in these terms:

IN CONSIDERATION of Cromer Excavations Pty Limited agreeing to Supply:

Cruz Concreting Services Pty Ltd ("the Customer") with services on credit I/We HEREBY AGREE jointly and severally to be answerable and responsible to Cromer Excavations Pty Limited for the due payment by the Customer for all such services as Cromer Excavations Pty Ltd may from time to time render to the Customer and I/WE ACKNOWLEDGE that this Agreement shall be a continuing guarantee to Cromer Excavations Pty Limited for all debts whatsoever and whensoever contracted by the Customer with Cromer Excavations Ply Limited in respect of services to be supplied to the Customer.

8 The parties agree that the arrangements between them are to be considered in terms of the Building and Construction Industry Security of Payment Act 1999. This Act, as the object in s 3 makes clear, is to ensure that any person who undertakes to carry out construction work or undertakes to supply related goods and services under a construction contract is entitled to receive and recover progress payments in relation to the carrying out of that work and the supplying of those goods and services. Section 3 then goes on to set out the means by which the Act ensures that that should happen. As the primary judge in Nepean Engineering Pty Ltd v Total Process Services Pty. Ltd. (In Liq) (2005) 64 NSWLR 462 said at [20]:

It seems to me that this Act was put in place for a purpose. That is, to allow parties to a contract to deal with it quickly and efficiently. It is put in, as I understand it, so subcontractors can render accounts and have them paid with not as much problem and fuss as there was in the past.

9 The determination of this summary judgment application largely turns on the construction of various sections of that Act and on what the parties in the present case did in respect of that Act.

Legislation

10 The Act relevantly provides:

7 Application of Act

(1) Subject to this section, this Act applies to any construction contract, whether written or oral, or partly written and partly oral, and so applies even if the contract is expressed to be governed by the law of a jurisdiction other than New South Wales.

...

8 Rights to progress payments

(1) On and from each reference date under a construction contract, a person:

(a) who has undertaken to carry out construction work under the contract, or

(b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment.

(2) In this section, reference date , in relation to a construction contract, means:

(a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract, or

(b) if the contract makes no express provision with respect to the matter - the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month.

...

13 Payment claims

(1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the claimant ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment.

(2) A payment claim:

(a) must identify the construction work (or related goods and services) to which the progress payment relates, and

(b) must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount ), and

(3) The claimed amount may include any amount:

(a) that the respondent is liable to pay the claimant under section 27 (2A), or

(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4) A payment claim may be served only within:

(a) the period determined by or in accordance with the terms of the construction contract, or

(b) the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied), whichever is the later.

(5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract.

14 Payment schedules

(1) A person on whom a payment claim is served ( the respondent ) may reply to the claim by providing a payment schedule to the claimant.

(2) A payment schedule:

(a) must identify the payment claim to which it relates, and

(b) must indicate the amount of the payment (if any) that the respondent proposes to make (the scheduled amount ).

(3) If the scheduled amount is less than the claimed amount, the schedule must indicate why the scheduled amount is less and (if it is less because the respondent is withholding payment for any reason) the respondent's reasons for withholding payment.

(4) If:

(a) a claimant serves a payment claim on a respondent,

and

(b) the respondent does not provide a payment schedule to the claimant:

(i) within the time required by the relevant construction contract, or

(ii) within 10 business days after the payment claim is served, whichever time expires earlier, the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.

15 Consequences of not paying claimant where no payment schedule

(1) This section applies if the respondent:

(a) becomes liable to pay the claimed amount to the claimant under section 14 (4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section, and

(b) fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

(2) In those circumstances, the claimant:

(a) may:

(i) recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction, or

(ii) make an adjudication application under section 17 (1)

(b) in relation to the payment claim, and

(b) may serve notice on the respondent of the claimant's intention to suspend carrying out construction work (or to suspend supplying related goods and services) under the construction contract.

(3) A notice referred to in subsection (2) (b) must state that it is made under this Act.

(4) If the claimant commences proceedings under subsection (2) (a) (i) to recover the unpaid portion of the claimed amount from the respondent as a debt:

(a) judgment in favour of the claimant is not to be given unless the court is satisfied of the existence of the circumstances referred to in subsection (1), and

(b) the respondent is not, in those proceedings, entitled:

(i) to bring any cross-claim against the claimant, or

(ii) to raise any defence in relation to matters arising under the construction contract.

...

17 Adjudication applications

(1) A claimant may apply for adjudication of a payment claim (an adjudication application ) if:

(a) the respondent provides a payment schedule under Division 1 but:

(i) the scheduled amount indicated in the payment schedule is less than the claimed amount indicated in the payment claim, or

(ii) the respondent fails to pay the whole or any part of the scheduled amount to the claimant by the due date for payment of the amount, or

(b) the respondent fails to provide a payment schedule to the claimant under Division 1 [which includes ss 14-16] and fails to pay the whole or any part of the claimed amount by the due date for payment of the amount.

(2) An adjudication application to which subsection (1) (b) applies cannot be made unless:

(a) the claimant has notified the respondent, within the period of 20 business days immediately following the due date for payment, of the claimant's intention to apply for adjudication of the payment claim, and

(b) the respondent has been given an opportunity to provide a payment schedule to the claimant within 5 business days after receiving the claimant's notice.

(3) An adjudication application:

(a) must be in writing, and

(b) must be made to an authorised nominating authority chosen by the claimant, and

(c) in the case of an application under subsection (1) (a) (i) - must be made within 10 business days after the claimant receives the payment schedule, and

(d) in the case of an application under subsection (1) (a) (ii) - must be made within 20 business days after the due date for payment, and

(e) in the case of an application under subsection (1) (b) - must be made within 10 business days after the end of the 5-day period referred to in subsection (2) (b), and

(f) must identify the payment claim and the payment schedule (if any) to which it relates, and

(g) must be accompanied by such application fee (if any) as may be determined by the authorised nominating authority, and

(h) may contain such submissions relevant to the application as the claimant chooses to include.

(4) The amount of any such application fee must not exceed the amount (if any) determined by the Minister.

(5) A copy of an adjudication application must be served on the respondent concerned.

(6) It is the duty of the authorised nominating authority to which an adjudication application is made to refer the application to an adjudicator (being a person who is eligible to be an adjudicator as referred to in section 18) as soon as practicable.

The acts and omissions of the parties

11 It can be seen that where a payment claim under s 13 is served the person on whom it is served has the option of replying by providing a payment schedule which can dispute the amount claimed and must indicate why that is so. If the recipient does not serve a payment schedule the claimant is entitled to recover the unpaid amount in a court of competent jurisdiction or make an adjudication application (s 15)(2)(a).

12 In the present case no payment schedules were served by Cruz.

13 On 19 April 2010 Cromer issued a letter to Cruz in these terms:

Notice under Section 17(2) of the Building and Construction Security of Payment Act 1999 NSW.

In response to this Company's payment claims numbered;

Invoice 405 dated 30/11/2009 Balance due$18349.70 plus GST

Invoice 415 dated 22/12/2009 for $18356.80 plus GST

Invoice 428 dated 25/01/2010 for $34428.61 plus GST

Invoice 437 dated 22/02/2010 for $38288.90 plus GST

Invoice 499 dated 16/03/2010 for $26008.35 plus GST

Your Company failed to provide a payment schedule within the time allowed by the Building and Construction Industry Security of Payment Act 1999 NSW.

As a consequence your Company became liable to pay the whole amount of these claims on the due date. The whole amount has not been paid. Our Company has elected to apply for adjudication of the payment claims. Your Company has 5 business days in which to serve a payment schedule or pay the payment claim in full.

If, within that time, your Company fails to pay the whole amount, this company will proceed to adjudication. If your company also fails to serve a payment schedule, your Company will be barred from lodging an adjudication response [see Section 20(2A) of the Act].

14 After the service of this letter no payment schedule in accordance with s 17(2)(b) was served by Cruz.

15 Notwithstanding what was contained in the letter of 19 April Cromer brought these proceedings and did not proceed to an adjudication.

The contentions of the parties

16 Cromer says that in the absence of any payment schedules having been served by Cruz, s 15(4)(b)(ii) provides that Cruz is not entitled to raise any defence in relation to matters arising under the construction contract. In those circumstances, Cromer says, with the invoices unpaid, there is no - 12 - defence to the claim made and it is appropriate that summary judgment be ordered.

17 Cruz makes 4 principal submissions. First, it says that it is not established that there is a construction contract between the parties to bring into consideration the provisions of the Act. Secondly, there is no evidence when the invoices were served. Thirdly, Cruz says that in the letter of 19 April 2010 there was an election by Cromer to go to adjudication. Cromer cannot resile from that election and bring the present proceedings. Fourthly, Cruz points to the fact that what the present proceedings seek are damages rather than liquidated amounts being the total of the invoices.

(a) Is there a construction contract?

18 Section 4 of the Act defines construction contract as meaning:

a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party.

19 In Okaroo Pty Limited v Vos Construction and Joinery Pty Limited & Anor [2005] NSWSC 45 Nicholas J discussed the meaning of "arrangement" in s 4:

[40] Arrangement" is a word without precise meaning. It appears in many statutory contexts and has been given meaning in those contexts in many cases. For the purposes of this case I find assistance in the following statements:

"... the word "arrangement" is apt to describe something less than a binding contract or agreement, something in the nature of an understanding between two or more persons – a plan arranged between them which may not be enforceable at law". ( Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 at p 7).

"The expression "arrangement or understanding'' in ss 45(2) and 45A requires that at least one party assume an obligation or give an assurance or undertaking that it will act in a certain way. A mere expectation that as a matter of fact a party will act in a certain way is not enough". ( Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (No 8) (1999) 165 ALR 468 per Lindgren, J at p 469).

(See also, Legal & General Assurance v Stock [1993] 49 IR 464 at pp 480-481; State Bank of NSW v Grover (1996) 64 IR 451 at pp 456-457).

[41] With regard to the authorities, and to its context in the Act, in my opinion the term "arrangement" in the definition is a wide one, and encompasses transactions or relationships which are not legally enforceable agreements. The distinction in the definition between "a contract" and "other arrangement" is intended by the legislature to be one of substance so that under the Act construction contracts include agreements which are legally enforceable and transactions which are not. Thus in distinguishing between these relationships I understand the legislature intends that "contract" is to be given its common law meaning and that "arrangement" means a transaction or relationship which is not enforceable at law as a contract would be. Accordingly I reject the submission for Okaroo that the term "arrangement" should be understood to mean an agreement which is tantamount to a contract enforceable at law.

[42] In deciding whether a contract or other arrangement is within the definition of construction contract the only matter for consideration is whether it is one under which one party undertakes to carry out construction work, or to supply related goods and services, for another party. There is no other requirement or qualification which is expressly or by implication included in the definition which must be satisfied. It may be safely assumed that had the legislature intended any additional requirement or qualification it would have included it in the definition ... .

20 The Managing Director of Cromer, Robert Pilat, swore an affidavit detailing the matters which I have set out in paras [3] - [7] above. He was not crossexamined on the material in his affidavit, nor was any evidence to the contrary adduced by Cruz. A challenge was made to one paragraph of his affidavit which purported to show, inadmissibly, that Cruz had orally accepted the quotation provided by Cromer. I rejected that paragraph.

21 Nevertheless, Mr Pilat deposed to the fact that Cromer attended the site and carried out work "pursuant to the agreed quotation". No objection was taken to that evidence.

22 Moreover, the evidence of the execution by Mr da Silva of the guarantee on 11 February 2010, during the period when the work was being carried out, and the terms of that guarantee, provide further support for the fact that, despite there being no evidence of an express acceptance of the quotation, a construction contract was entered into by virtue of the acceptance by Cruz of the work carried out by Cromer pursuant to the quotation.

23 Mr da Silva swore an affidavit which was read at the hearing. He relevantly said only that he had not been able to locate any signed written contract between Cromer and Cruz and that he had not been involved with the awarding of any contract to Cromer. He did not respond to the evidence of Mr Pilat that Cromer commenced work in accordance with the agreed quotation nor continued to carry it out up to and including 13 March 2010. He did not deny that Cromer carried out the work. Nor did he or Cruz lead any evidence to suggest that the work was carried out for some other entity than Cruz. When it was Cruz that raised the issue of whether there was a construction contract between the parties, the absence of such evidence from Mr da Silva enables me to accept more readily the evidence of Mr Pilat.

24 Although I consider it likely that there was a contract enforceable at law in the present case, there was at least an arrangement under which Cromer undertook to carry out construction work and to supply goods and services for Cruz. Cromer establishes that there was a construction contract (as defined in s 4) with Cruz.

(b) When were the invoices served?

25 Whilst it is true that there is no direct evidence of when the invoices were served, it is not clear what benefit Cruz derives from that absence. What is perfectly clear is that the invoices must have been served by a date prior to 19 April 2010 because on that day Cromer wrote the letter which I have set out in para [13] above. That letter was put into evidence as an annexure to Mr da Silva's affidavit.

26 There is no assertion, for example, that the letter of 19 April 2010 was written within 10 business days after the invoices were served so that Cruz was denied the opportunity under s 14 to provide a payment schedule within that period of time (see s 15(4)(b)).

27 Precisely when the invoices were served is irrelevant, particularly in the light of the fact that at no stage has Cruz provided a payment schedule whether under s 14 or s 17(2)(b), nor has Cruz made any tender or offer of payment to Cromer.

28 Cruz submitted that s 15(2) provides a clear choice of remedy to a claimant, and that in the present case the claimant chose the adjudication path by virtue of its letter of 19 April 2010. Cruz relied on the decision of Einstein J in Rojo Building Pty Limited v Jillcris Pty Limited [2006] NSWSC 309 as providing support for this submission.

29 In Rojo it appears that a payment claim was served by the claimant. Thereafter, when no payment schedule had been received by the claimant, it gave a notice under s 17(2) of its intention to apply for adjudication of the payment claim on the respondent. The following day the respondent provided a payment schedule to the claimant. There was a dispute about whether the payment schedule was provided in response to the service of the payment claim or to the notice under s 17(2).

30 In any event, the claimant subsequently advised the respondent that it did not propose to proceed to make an application for adjudication under s 17(1), and it brought proceedings in this Court, in which it sought summary judgment of the claim against the respondent. The application for summary judgment was heard by Einstein J.

31 Einstein J appeared to accept that the payment schedule was given in response to the s 17(2) notice because he said at [18]:

It is plain that once Jillcris received the s 17(2)(a) and (b) notifications, its anterior failure to provide a payment schedule within the time delimited by s 14 is no longer visited with Rojo's initial right to recover the unpaid portion of the claimed amount as a debt by curial process. Rather, Jillcris has been given an alternate statutory opportunity to provide a payment schedule within an entirely different bracket of time: five (5) business days after receiving the Rojo notification of intent to apply for adjudication. Effectively the case presently being pursued by Rojo would deny Jillcris' said alternate statutory opportunity. Indeed, that alternate statutory opportunity had been exercised even prior to Rojo's endeavour to withdraw its notice of intention to apply for adjudication.

32 A little later in the judgment Einstein J made reference to his earlier decision in Schokman v Xception Construction Pty Ltd [2005] NSWSC 297 and then said this in Rojo :

[35] On the particular facts before the Court in that case, the Court observed that it cannot have been the intention of the legislature to permit a claimant [in a circumstance where no payment schedule has been provided], to make an adjudication application in relation to the payment claim and later, in the event that the adjudication miscarried, to pursue curial proceedings to recover the unpaid portion of the claimed amount from the respondent as a debt. This would expose a respondent not to one set of interim procedures aimed at a swift (albeit interim) result, but to two such interim sets of procedures.

[36] Once Rojo had served its s 17 (2) notice of intent to make an adjudication application [it being quite plain that certainly by 22 December 2005 that service had been effected], Jillcris became entitled to exercise its statutory right to provide a payment schedule within five business days of service of the notice of intent to apply for adjudication. In those circumstances Rojo, having elected:

i. not to proceed by the route provided for in s 15 (2) (a) [vide by proceeding to recover the unpaid portion of the claimed amount as a debt by curial process],

ii. instead to make an adjudication application under s 17 (1) (b) became disentitled from restoring the position ante .

[37] Rojo's election had now triggered a statutory right in Jillcris. That step having been taken, Jillcris was entitled to exercise that statutory right.

[38] The effect of Rojo's solicitors communication of 23 December 2005 [advising that Rojo did not propose to proceed to make an application for adjudication and that accordingly, Jillcris was not required to provide a payment schedule in accordance with s 17 (2) (b)]:

i. was not to restore the position to that which it had been prior to Rojo having made the election provided for in s 15 (2) (a) as between the two inconsistent routes;

ii. was that Rojo had waived its anterior rights to proceed by curial process to recover the unpaid portion of acclaimed amount as a debt.

The strictures imposed by the Act

[39] Many of the authorities have focused upon the strictures imposed by the Act and upon the need for formal compliance with the provisions of the Act. The scheme of the Act is unforgiving in terms of the technicalities which require to be observed. There is no room for a claimant to approbate and reprobate. There is another party to be considered. There is no room for a claimant to leave a respondent in any form of doubt as to precisely what course is being followed by the claimant. Nor is there room for a respondent to leave a claimant in any form of doubt as to precisely what course is being followed by the respondent.

33 In those circumstances, his Honour dismissed the application for summary judgment. He also ordered that if Rojo had not notified the Commercial List Judge by a certain time and date that it wished to continue the proceedings and/or sought leave to amend the summons, the summons was taken to be dismissed at that time and date.

34 Rojo notified the Commercial List Judge that it wished to continue with the proceedings. As a result, it came before McDougall J for final hearing – see Rojo Building v Jillcris [2006] NSWSC 649 at [36]. As a result of the way the matter had been dealt with by Einstein J the question of whether there was an issue estoppel in respect of the issue decided by Einstein J concerning an election was raised.

35 McDougall J determined that as there had been an opportunity for a final hearing and a full debate on the point before Einstein J he would not, as a matter of discretion, permit the parties to have what he described as "another bite of the cherry". He then went on to say at [52]:

If the decision of Einstein J is wrong, so be it. But that, in my view, is a matter to be determined by the Court of Appeal in the usual way, and not by another single Judge of this Court upon an attempt to reargue the same point between the same parties.

His Honour thereafter ordered that the summons be dismissed and the Plaintiff was to pay the Defendant's costs of the proceedings. That judgment was given on 22 June 2006.

36 Rojo ultimately appealed from McDougall J's judgment and Einstein J's judgment: Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWCA 68 . The Court of Appeal held that McDougall J was in error and that Rojo had been deprived of an opportunity to have a final determination of its claim. In the course of his judgment Hodgson JA (with whom Mason P and Ipp JA agreed) said:

[20] In saying that the result before Einstein J was correct, I am neither agreeing nor disagreeing with his view on the statutory construction. However, in my opinion, McDougall J should have embarked on a final hearing, permitting Einstein J's view on statutory construction to be challenged.

37 The matter then came before McDougall J again on 11 July 2007: Rojo Building Pty Limited v Jillcris Pty Limited [2007] NSWSC 880. His Honour identified the fundamental question he had to decide was whether Rojo, having given notice of its intention to make an adjudication application, had to proceed with that statutory alternative or was permitted to withdraw its notification and follow the alternative statutory remedy - see at [5].

38 His Honour then set out the facts and said that the primary issue raised a number of questions, the first and second of which were whether Rojo had made any election and, if so, what that election was. His Honour then discussed the interlocutory judgment of Einstein J, the earlier decision of Einstein J in Schokman and the decision of Bergin J in Kell & Rigby Pty Limited v Guardian International Properties Pty Ltd [2007] NSWSC 554.

39 When considering the first question of whether an election had been made his Honour said this:

[63] As both the language of s 17(2) and the decision of Bergin J in Kell & Rigby make plain, an adjudication application cannot be made until notice has been given under s 17(2)(a) and the respondent has been given five business days thereafter to provide a payment schedule. The provision of a notice under s 17(2)(a) gives the respondent a right: a further opportunity to provide a payment schedule. But neither the giving of a notice under s 17(2)(a) nor (if it happens) the provision of a payment schedule under s 17(2)(b) constitutes the making of an adjudication application. The claimant is not bound to apply for adjudication after the payment schedule is provided. It may decide, for any number of reasons, not to press the dispute further. For the reasons that I have given, I express no view as to whether the claimant could retreat to the other statutory alternative given by s 15(2)(a).

[64] For present purposes, I am prepared to assume that s 15(2)(a) does provide for inconsistent alternatives, and that it does raise a question of election. That I think would be an election between remedies, not an election between rights. The right is to be paid the progress payment, or the statutory liability created by s 14(4). Section 15(2)(a) provides alternative remedies whereby that right can be enforced.

[65] But, assuming that s 15(2)(a) does entail the notion of election, it is an election between bringing proceedings in a court and making an adjudication application. As I have said, a notice of intention to apply for adjudication does not amount to making an adjudication application. It is a procedural, although necessary, precondition to the making of such an application.

[66] In those circumstances, I do not accept that the mere giving of a notice under s 17(2)(a) is of itself sufficient to constitute, or to trigger, the making of any election for which s 15 (2)(a) provides.

40 His Honour thereafter directed entry of judgment for Rojo against Jillcris in the sum of $251,537.09 with interest and made various ancillary orders including a costs order.

41 The conclusion to which McDougall J came in his judgment of 12 July 2007 would appear to be inconsistent with the judgment of Einstein J in that Einstein J considered that an election was made when the notice under s 17(2) was given - see at [36], whereas McDougall J held that the mere giving of the notice was not sufficient to constitute the making of any election under s 15(2)(a) - see at [63] and [66].

42 It must be said that Einstein J did not have the full detail of the facts in evidence before him and appears to have been influenced by the fact that his view was that a payment schedule had been provided in response to the s 17(2) notice.

43 In my opinion, and with great respect to Einstein J, the judgment of McDougall J is to be preferred.

44 In Kell & Rigby Bergin J appeared to distinguish the notice of intention to make the adjudication application and the making of the application itself -

see at [24]. Similarly, McDougall J in Rojo at [63] stressed that the adjudication application itself could not be made until the s 17(2) notice had been given and that the giving of the notice was not the making of the application. In the light of what s 17(3) prescribes in relation to the adjudication application, the distinction between the notice of intention and the application itself must be a correct distinction.

45 It follows, therefore, that the giving of a notice under s 17(2) does not, without anything more, amount to an election between the remedies provided in s 15(2)(a). That is the more so when, as here, there is no evidence that the respondent has acted in any way on the basis that the s 17(2) notice has been served, whether by providing the payment schedule that s 17(2)(b) provides for, or otherwise.

46 For these reasons, Cromer has not made an election that prevents the claim made in the present proceedings.

(d) Relief claimed

47 The Amended Statement of Claim sought the following relief:

A declaration that on the true construction and interpretation of the guarantee executed and dated 11 February 2010, the Second Defendant is not entitled to the benefit of any set-off and / or claim arising in favour of the First Defendant against the Plaintiff.

Damages.

Interest.

Costs.

48 The pleading generally recited the facts that I have set out in paras [3] - [7] above, asserted the failure to issue payment schedules in respect of the invoices, asserted a demand on the Second Defendant and his refusal to satisfy that demand and then pleaded these paragraphs:

[13] In breach of its performance of the accepted quotation, the Defendant has failed and / or refused to pay the amounts claimed in the invoices set out in paragraph 11 above.

14] As a result if the First Defendant's breaches pleaded in paragraph 13 above the Plaintiff has suffered loss and damage. ...

[19] As a result of the First Defendant's breaches pleaded in paragraph 13 above, the Plaintiff claims damages against the Second Defendant.

49 Whilst it is true that any alleged failure to pay the invoices by Cruz, and the failure by the Second Defendant to satisfy the guarantee, amounted to breaches of contract the damages in respect of which were likely to be equal to the amount of the invoices, it was a cumbersome and unnecessary way to plead what in substance was a liquidated claim.

50 What was really being claimed was payment of the amounts specified in the invoices. The claim against the guarantor was, in substance, a claim for payment of those amounts because of the guarantee.

51 Part 6 r 12 UCPR requires that a Statement of Claim must specifically state the relief claimed by the Plaintiff. The relief claimed ought to have been for a judgment in a liquidated sum being the total of the invoices. Further, sub-r (7) means that there ought to have been a specific claim for interest for particular periods and at particular rates. The Plaintiff has not done any of these things. The purpose of the Rule is to ensure, as far as possible, that the Defendant to any claim knows precisely what is being claimed against it. Provided the Court can be sure that a Defendant is not in doubt or has not been misled, the Court has the undoubted power to give such judgment as the nature of the case requires (s 90 Civil Procedure Act 2005, Pt 36 r 1 UCPR).

52 There is no suggestion in the present case that there is any doubt on the Defendants' part what was being sought in the Amended Statement of Claim. Paragraphs 13 and 17 of the Amended Statement of Claim make it clear that it is the amounts in the invoices that are being claimed. Further, the affidavit filed by the Second Defendant makes it apparent that the Defendants understand that it was those amounts that formed the claims against them.

53 In my opinion, the fact that a claim has not been made for a liquidated amount, and the fact that the provisions of Pt 6 r 12(7) have not been complied with, should not be any bar to Cromer obtaining a judgment to which it is otherwise entitled.

Conclusion

54 None of the matters raised by Cruz has been made out. The defence raises no matters of substance. It did not even articulate the four matters argued by Cruz. It simply contains denials and non-admissions, in some cases where the Defendant is likely to have had knowledge which would make non-admissions inappropriate.

55 Section 15(4)(a) requires the Court to be satisfied of the existence of the circumstances referred to in s 15(1). I am satisfied that Cruz has become liable to pay the amounts of the invoices, the subject of the claim as a consequence of having failed to provide a payment schedule to Cromer within the time allowed by s 14. I am satisfied that Cruz has failed to pay the whole of the amounts in the invoices the subject of the claim at any time. In those circumstances the Plaintiff is entitled to summary judgment in respect of the sum of the invoices together with interest.

56 Cruz has also raised as part of its defence that the present proceedings have been commenced in an inappropriate jurisdiction and that they should be transferred to the District Court. I do not consider that that is an appropriate order. However, the commencement of the present proceedings in this Court may have costs implications in the light of Pt 42 r 34 UCPR.

57 The parties should bring in Short Minutes of Order to reflect these reasons.

I will hear the parties on costs.

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