NEW SOUTH WALES SUPREME COURT

CITATION:

Parsons Brinckerhoff Australia Pty Ltd v Downer EDI Works Pty Ltd [2010] NSWSC 1295

JURISDICTION:

FILE NUMBER(S):

2010/306867

HEARING DATE(S):

1 November 2010

JUDGMENT DATE:

12 November 2010

PARTIES:

Parsons Brinckerhoff Australia Pty Ltd - Plaintiff

Downer EDI Works Pty Ltd (formerly Works Infrastructure Pty Ltd) - Defendant

JUDGMENT OF:

Hammerschlag J

LOWER COURT JURISDICTION:

Not Applicable

LOWER COURT FILE NUMBER(S):

Not Applicable

LOWER COURT JUDICIAL OFFICER:

Not Applicable

COUNSEL:

S.A. Kerr SC [Plaintiff]

G. Inatey SC with D.R.Sibtain [Defendant]

SOLICITORS:

Norton Rose Australia [Plaintiff]

Blake Dawson [Defendant]

CATCHWORDS:

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (“the Act”) s 31 – meaning of the phrase “ordinary place of business” – whether an address where the offices of its Chief Executive Officer and Chief Financial Officer were situated and from where business management and support services, finance support services, safety and environment and human resources management were provided for the defendant’s business nationally was its ordinary place of business – HELD – held that the place was the defendant’s ordinary place of business

LEGISLATION CITED:

Building and Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth)

CATEGORY:

Principal judgment

CASES CITED:

Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542

Jones (as Trustee of the property of Heather MacNeil-Brown, A Bankrupt) v Southall & Bourke Pty Ltd [2004] FCA 539

TEXTS CITED:

DECISION:

Judgment for the plaintiff for $1,389,362.07 together with interest at the prescribed rate from 19 April 2010. Defendant to pay plaintiff’s costs of the proceedings

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

TECHNOLOGY AND CONSTRUCTION LIST

HAMMERSCHLAG J

12 NOVEMBER 2010

2010/306867 PARSONS BRINCKERHOFF AUSTRALIA PTY LTD ACN 078 004 798 –VDOWNER EDI WORKS PTY LTD (FORMERLY WORKS INFRASTRUCTURE PTY LTD) ACN 008 709 608

JUDGMENT

1 HIS HONOUR : By written Subconsultancy Agreement (“the Agreement”) entered into in about July 2007, the defendant (as Consultant) engaged the plaintiff (as Subconsultant) to provide design consultancy services in relation to the upgrade of a passenger rolling stock production facility at Glendale, New South Wales (“the project”). The defendant had earlier been engaged as Consultant by EDI Rail Pty Ltd to provide general consultancy services in relation to the project.

2 On 1 April 2010 the plaintiff sent to the defendant by facsimile a payment claim (“the Claim”) under the Building and Construction Industry Security of Payment Act 1999 (“the Act”) for $1,389,362.07 which it asserted was owing under the Agreement.

3 The Claim was transmitted to and received by the defendant by facsimile at:

a facsimile number (03) 8645 0840, which is at the defendant’s offices at Level 2, 650 Lorimer St, Port Melbourne, Victoria (“the Melbourne Office”); and

b facsimile number (02) 4961 4284 which is at a site office occupied by the defendant at Broadmeadow New South Wales (“the Broadmeadow Office”).

4 Section 31 of the Act provides:

31 Service of notices

(1) Any notice that by or under this Act is authorised or required to be served on a person may be served on the person:

(a) by delivering it to the person personally, or

(b) by lodging it during normal office hours at the person’s ordinary place of business, or

(d) in such other manner as may be prescribed by the regulations for the purposes of this section, or

(e) in such other manner as may be provided under the construction contract concerned. (emphasis added)

(2) Service of a notice that is sent to a person’s ordinary place of business, as referred to in subsection (1) (c), is taken to have been effected when the notice is received at that place.

(3) The provisions of this section are in addition to, and do not limit or exclude, the provisions of any other law with respect to the service of notices.

5 The sole issue is whether the Melbourne Office or the Broadmeadow Office was on 1 April 2010 the defendant’s ordinary place of business within the meaning of s 31(1)(c) of the Act.

6 If it was, then it is common cause that the defendant failed within 10 days after the receipt of the Claim (being the time prescribed by s 14(4)(b)(ii) of the Act) to serve a payment schedule. It served a payment schedule on or about 12 May 2010. Section 15(2) of the Act provides that, in that event, the plaintiff is entitled to recover the amount of the Claim as a debt due.

7 On 15 September 2010, the plaintiff commenced proceedings against the defendant seeking judgment in the amount of the Claim together with interest and costs. After service by the defendant of its Technology and Construction List Response, the plaintiff moved for summary judgment. At the hearing of the application for summary judgment the parties agreed that the matter should proceed as a final hearing. Mr S A Kerr SC appeared for the plaintiff. Mr G Inatey SC and Mr D R Sibtain appeared for the defendant.

8 Neither party drew the Court’s attention to any pertinent authority on the meaning to be attributed to the phrase “ordinary place of business”. However, senior counsel for the defendant accepted that the defendant could have more than one ordinary place of business.

9 It should be observed that under s 142(1) of the Corporations Act 2001 (Cth) (“Corporations Act”) the defendant must have a registered office. Under s 109X(1)(a) of that Act, for the purposes of any law, a document may be served on a company by leaving it at or posting it to the company’s registered office.

10 The Melbourne Office is the defendant’s registered office. However, it was not suggested that s 109X(1)(a) of the Corporations Act applies in this case, no doubt because the Claim was neither left at nor posted there. It is well established that s 109X is facultative and that service at the registered office may take place by any means where the document has actually come to the attention of the addressee within time: see eg Howship Holdings Pty Ltd v Leslie and Another (1996) 41 NSWLR 542 at 544. The plaintiff did not seek to establish that the Claim came to the notice of anyone on behalf of the defendant as a consequence of delivery more than ten days before the payment schedule was served at the Melbourne Office. The plaintiff’s submission was restricted to one that the Melbourne Office was also the defendant’s ordinary place of business.

11 The defendant’s business operations are Australia wide. They can loosely be divided into road surfacing (including asphalt production), rail infrastructure maintenance and civil works (including drainage and curbing).

12 It is often the case that a company’s registered office is little more than an address maintained, as required by law, for the service of notices and where statutory registers are kept. That is not the case with respect to the Melbourne Office.

13 The following business functions are performed from the Melbourne Office in relation to the defendant’s operations nationally:

a business management and support services including the office of the defendant’s Chief Executive Officer;

b finance support services including the office of the defendant’s Chief Financial Officer;

c safety and environment management; and

d human resources.

14 The defendant also has a number of regional divisional offices each of which is responsible for the conduct of normal business operations within its respective regional division. The divisions include Western Australia, Central Region (SA), New South Wales, Queensland, Northern Territory and Tasmania.

15 The Broadmeadow Office is a site office maintained by the defendant for the purposes of administering and undertaking rail related projects, mainly track works in the Hunter Valley and Sydney, not related to the present project. The project itself was administered on a day-to-day basis from a site office maintained by the defendant at Glendale, NSW.

16 To my mind the word “ordinary” in the phrase “ordinary place of business” connotes “usual”; see Jones (as Trustee of the property of Heather MacNeil-Brown, A Bankrupt) v Southall & Bourke Pty Ltd [2004] FCA 539 at [42]. I think that the ordinary place of a person’s business includes any place at or from which the person usually engages in activities which form a not insignificant part of the person’s business.

17 Whatever be the minimum requirement for a location to be a person’s ordinary place of business, the Melbourne Office qualifies for that description with respect to the defendant.

18 Apart from being the defendant’s statutorily required registered office, the Melbourne Office is the seat of its chief executive officer and chief financial officer. It is the place from where business management and support services and finance support services are provided for its business operations nationally. As well safety and environment issues and human resources nationally are managed from there. It is thus a nerve centre and what might be described as the head office of the defendant’s national business.

19 Additionally, the defendant has in connection with the present project communicated with the plaintiff from the Melbourne Office. On 18 September 2009, Mr Andrew McKenzie, the plaintiff’s General Manager NSW, wrote to Mr Michael Jenkins, the defendant’s General Manager, Rail and Tunnels. Because the letter was marked without prejudice only the letterhead is in evidence. The Melbourne Office address and fax number are on the letterhead.

20 I find that on 1 April 2010, the Melbourne Office was the defendant’s ordinary place of business for the purposes of the Act.

21 This finding renders it unnecessary to deal with the Broadmeadow Office. It does however seem to me that it too would qualify. From there the defendant administers and undertakes projects which are clearly not an insignificant part of its ordinary business. Contrary to a submission put on behalf of the defendant, I do not think that s 31(1)(c) of the Act requires there to be a direct connection between the transaction which is the subject of the Claim and the place which is the defendant’s ordinary place of business. Accordingly, it does not matter that the project was not administered from the Broadmeadow Office.

CONCLUSION

22 There will be judgment for the plaintiff for $1,389,362.07 together with interest at the prescribed rate from 19 April 2010. The defendant is to pay the plaintiff’s costs of the proceedings.

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LAST UPDATED:

12 November 2010