Title of Court: Magistrates Court Tasmania (Civil Division)

Citation: Q Civil & Construction Pty Ltd v Nadler [2013] TASMC 45

Parties: Q CIVIL & CONSTRUCTION PTY LTD (ACN 144 899

505) (Applicant)

NADLER, Frank and Katrina (Respondents)

File No: M/2013/2525

Hearing date: 2 July 2013

Decision of: Magistrate S J N Brown

Delivered on: 27 August 2013

Catchwords: Procedure – Judgments - Application for summary judgment – considerations Profession and Trades – Builders – other matters – claim for payment by builder under Building and Construction Industry Security of Payment Act – enforcement – whether notice of payment schedule served in time – calculation of time Building and Construction Industry Security of Payment Act 2009, ss 17,19, 27 Magistrates Court (Civil Division) Rules 1995, r115 Acts Interpretation Act 1931, s29

No. of paragraphs: 72

Representation:

Counsel:

Applicant: B Cassidy

Respondent: B Frake

Solicitors:

Applicant: Page Seager

Respondent: Rae & Partners

Reasons for Decision

Introduction

1. The applicant company has instituted proceedings against the respondents claiming $30,500 together with interest and costs.

2. The applicant’s claim arises out of an agreement between the parties whereby the applicant agreed to build a new home for the respondents for $305,000, inclusive of GST. The agreement was in the form of a “Housing Industry Association Limited (Tasmania Region) Plain Language Tasmanian Domestic Building Contract” dated 11 October 2011.

3. The agreement, inter alia, provides for the total sum of $305,000 to be paid by the respondents to the applicant over six separate instalment payments. The last payment – due on practical completion of the dwelling being achieved – is in the sum of $30,500. That is the payment which is the subject of these proceedings.

4. The applicant contends that the project attained practical completion on 1 June 2012. It contends that, at that time, it was therefore liable to be paid the final instalment payment due under the contract of $30,500. The applicant says that on 24 July 2012 it served a “payment claim” on the respondents in relation to the matter seeking payment of $30,500.

5. Essentially the respondents contend that the dwelling had not attained practical completion and that the applicant is thereby not entitled to payment of $30,500 as claimed. They also contend that the design and construction of the dwelling is not in accordance with the agreement. They contend that the driveway to the dwelling does not comply with the relevant Australian Standard. Firstly, in that it is too steep to be used for most vehicles and that is impossible to drive into the garage of the premises from the driveway. Secondly, they allege that the property has no off street parking.

6. The respondents contend that the property has therefore been devalued by virtue of these faults and that they have been unable to obtain comprehensive insurance cover for the property as a result. They contend that they have thereby suffered loss and damage and that the applicant is thereby not entitled to the payment sought in the action.

The Application before the court

7. The applicant has made application pursuant to rule 115 of the Magistrates Court (Civil Division) Rules 1995 that there be summary judgment against the respondent Frank Nadler for the sum claimed and interest from 7 August 2012 together with costs.

8. For the reasons discussed at paragraph 44 below, the application before me is limited to the first respondent, as Mrs Nadler is not a “building practitioner” within the meaning of the Building and Construction Industry Security of Payment Act 2009 (the “Act”).

9. It is the applicant’s contention that it is entitled to judgment upon the following bases:

(a) That the Act applies to the agreement between the parties; and

(b) That the applicant served a payment claim pursuant to the Act, s17, on the defendant on 24 July 2012 and claimed $30,500; and

(c) The first respondent failed to effectively dispute that payment claim by providing the applicant with a “payment schedule” pursuant to the Act s 19 within the time available to him to do so; and

(d) Absent a proper payment schedule being provided to the applicant within the time limited by the Act the applicant is entitled to payment of the sum claimed in the payment claim.

Summary Judgment

10. Summary Judgment is a remedy which should be granted sparingly. Great care should be exercised before a defendant is denied the opportunity to argue his case at a hearing. It should only be granted where it is clear that there is no real question to be tried. The principles which apply to such an application have frequently been considered by the courts (see Woods v Deputy Commissioner of Taxation (2011) TASSC 68, Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87).

11. What is clear is that it is not sufficient that the court be satisfied that the defendant is unlikely to succeed at hearing. Various formulations of the correct approach have been enunciated (see Dey v Victoria Railway Commissioners (1949) 78 CLR 62, [1949] HCA 1 per Dixon J, General Steel Industries Inc. V Commissioner for Railways (NSW) (1964) 112 CLR 125, [1964] HCA 69 per Barwick CJ). In Port v Alexopoulos (No. 2) (2011) TASSC 37 at 45 Crawford CJ said “Summary judgment should only be ordered if there is no reasonable doubt that the plaintiff is entitled to judgment”. In Jones v Stone (1894) AC 122 at 124 it was held that “The plaintiff must show a clear case against the defendant which the latter cannot possibly answer”. In Roberts v Plant (1895) 1QB 597 the test was put forward that “[i]t must be clear there is no real question to be tried”.

12. Another way of expressing the correct approach is that there must be a high degree of certainty about the outcome of proceedings being adverse to the defendant (see Agar v Hyde (2000) 201 CLR 552, [2000] HCA 41). There is little distinction between these approaches (see Spencer v Commonwealth [2010] HCA 28).

The Building and Construction Industry Security of Payment Act 2009

13. The operation of this legislation is at the heart of the application before me. It cannot be doubted that the Act represents a very significant change in how litigation and dispute resolution in the building and construction industry is to be conducted in Tasmania. The enactment of this legislation has had the effect of significantly enhancing the position of building practitioners in extracting monies from their clients, despite the existence of genuine disputes as to the extent to which works have been completed and/or the quality of the works completed or materials provided. The Act cannot be “contracted out” of a building and construction contract (s11).

14. A builder who has undertaken to carry out building works under a contract to which the Act applies is entitled, on each date provided for it in the contract, on provision of a “payment claim”, to be paid on that claim (s12).

15. The making of a “payment claim” by a builder is governed by the Act, s17. That provision allows for a builder (“who is or who claims to be entitled to a progress payment” under s12) to serve a “payment claim” on a person who is or may be liable under the contract to make the payment (s17(1).

16. The Act, s17(2)(a) to (g) sets out what is required in order that such a payment claim be valid. The recipient is obliged to pay it in full or the recipient may dispute the payment claim by providing the builder with a “payment schedule” (s18). Should the recipient fail to provide a payment schedule to the builder within the time limited by the Act, the recipient of the payment claim becomes liable to pay the claimed amount on the date due for the progress payment to which the payment claim relates (s19(2)). The recipient’s liability to pay the payment claim, where such a claim has not been disputed by providing the builder with a payment schedule within the time limited by the Act, can be enforced by either:

(a) an action in a court to recover those monies as a debt; or by

(b) an application to an adjudicator appointed under the Act to determine the matters in dispute.

17. If the builder seeks to enforce the payment claim by instituting proceedings in a court then s19(7) and (9) apply. Those provisions allow a court to give judgment in those enforcement proceedings in favour of a builder if:-

(a) the recipient of a payment claim has been served with such a payment claim and has not disputed it by providing a payment schedule at all or within the times limited by the Act; and

(b) the recipient has not paid all the amounts set out in the Payment claim on or before payment is due.

18. S19(8) of the Act is significant. It provides:

“A respondent in proceedings under this section in a court of competent jurisdiction is not entitled in those proceedings –

(a) to bring a cross-claim against the applicant; or

(b) to raise a defence in relation to matters arising under, or relating to the subject matter of, the building or construction contract.”

19. As noted above if a person liable to make a payment under an agreement caught by the Act (i.e. the owner) is served with a payment claim and disputes it in part or in full within the time limited by the Act by virtue of providing a payment schedule to the builder, the builder may choose to apply to have an adjudicator to determine the matter in dispute (s19(5)). If the builder decides to pursue his monies by means of an adjudication under the Act then Part 5 applies. Should an adjudicator decide that the builder is entitled to some or all of the monies claimed in the payment claim then, provided a proper certificate is issued by the adjudicator, the owner must pay in accordance with the adjudicator’s decision. (s26(1)) If the owner fails to make payment then the certificate issued by the adjudicator may be filed as a judgment for a debt in a court against the owner (s27(1)).

20. Further s27(5) provides:-

“If the respondent (i.e. the owner) commences proceedings to have the judgment set aside (i.e. the judgment supported by an adjudicator certificate), the respondent –

(a) is not, in those proceedings, entitled –

(i) to bring a cross-claim against the applicant; or

(ii) to raise a defence in relation to matters arising under, or relating to the subject matter of, the building or construction contract; or

(iii) to challenge the adjudicator's determination; and

(c) must pay into the court as security the unpaid part of the adjudicated amount, pending the final determination of those proceedings.”

[emphasis added]

21. From the foregoing it is plain that the Act represents a very significant change in how litigation and dispute resolution regarding claims for monies made by builders is conducted. The position of builders to secure payment under contracts quickly and without being subject to proving their cases in court and defending claims of negligence etc. in court before being paid has been very considerably advantaged. In this regard the Act, s3, is of relevance. It provides:-

“The object of this Act is to ensure that any person who undertakes to carry out building work or construction work (or who undertakes to supply building or construction-related goods and services) under a building or construction contract, including such a contract that relates to a residential structure, is entitled to receive, and is able to recover, progress payments in relation to the work or goods and services.”

22. In Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd and Anor (2009) VSC 156 Vickory J observed (at paragraphs 36 to 49) of the Victorian iteration of this legislation that:-

“The principle that the respondent to a payment claim for a progress payment ‘should pay now and argue later’, is given full effect under the Act: Multiplex Constructions Pty Ltd v Luikens and Anor. This regime promotes the object of the Act, being to facilitate timely payments between the parties to a construction contract and to provide for the rapid resolution of disputes arising in respect of progress claims under construction contracts”.

His Honour went on and observed:

“From this analysis I readily accept the observation made in a number of recent authorities that the Act places the applicant in a privileged possession in the sense that it acquires rights that go beyond its contractual rights: Protectavale Pty Ltd v K2K Pty Ltd”.

23. The Act, s10, is to the effect that, should an owner be forced to pay a builder more than he believes is just and appropriate by virtue of the operation of the Act (i.e. by virtue of a successful debt claim made by a builder pursuant to s19(2)(a)(i) or by the decision of an adjudicator pursuant to s19(a)(ii) and Part 5 of the Act), then the owner can still pursue the builder in new proceedings. However, what the Act does is ensure that the builder is paid – or paid at least the amount an adjudicator decides he is entitled to – first. The owner is at liberty to try to recover those allegedly overpaid monies or damages by separate proceedings pursuant to s10, but the builder has its money all the while.

24. Therefore in considering this application it must be borne in mind that I am not in any way deciding the merits of the respondents’ claims that the applicant’s work was not in accordance with the contract. Should the applicant’s application be successful then the respondents are entitled to pursue the builder to recover damages for breaching the agreement in separate proceedings.

Discussion

25. Therefore, in the light of the manner in which the Act operates the issues to be determined on this application are as follows:

(a) was the applicant entitled to issue a payment claim under the Act, and if it was,

(b) has the applicant established clearly on the evidence before me that it has strictly complied with its obligations as to the issuing of the payment claim, and if it has,

(c) has the respondent failed to exercise its options in response to the payment claim so as to entitle the applicant to the payment sought?

Was the applicant entitled to serve a payment claim on the respondents?

26. The respondent submits that the applicant was not entitled to serve them with a payment claim. He argues that the dwelling had not in fact reached practical completion and, as such, under the contract the applicant is not entitled to make a payment claim.

27. The contract relevantly provides:-

“Clause 26.0 The builder must give the owner a written Claim for Payment when each stage had been completed. The claim must set out each of the following;

(a) the amount claimed and not paid for the stage or stages completed;

(b) the amount claimed and not paid for, any variations made; and,

Clause 26.1 ..............

Clause 27.0 The owner must pay a Progress Claim within 5 working days after both:

(a) the relevant stage has been substantially completed;

and,

(b) the builder has given a claim to the owner under Clause 26.”

28. In this regard the respondent submitted that the court needs to be satisfied on this application that the dwelling had in fact reached practical completion.

29. for the respondent submitted that the contract relevantly provides that “practical completion” means:-

“When the building works are complete except for minor defects or omissions that do not prevent the building works from being reasonably capable of being used for their usual purpose.”

30. Counsel for the respondents further referred to the contract which provides that “Progress Payments are due and payable after completion of the stages of the building works as listed below”. The contract provided that 10 per cent (i.e. $30,500) of the contracted price was to be paid on “practical completion” as defined above.

31. I reject this submission. Firstly, the Act, s11, prevents any of its provisions from being “contracted out” of any contract to which the Act applies. Secondly, the making of claims for payment is covered by the Act, s17. The plain language of that provision is to the effect that any person who is (or who claims to be) entitled to a progress payment may serve a payment claim on a person who is (or may be) liable under the contract to make the payment.

Therefore it is not a precondition to the making of a valid payment claim in this case that “practical completion” must be achieved. Effectively it is enough that an applicant contends that practical completion has occurred and that he is thereby entitled to a progress payment.

32. The material before me shows that an “Occupancy Certificate” under the Building Act 2000 was issued in relation to the subject premises on 1 June 2012.

33. Further the applicant deposes that the premises reached practical completion shortly prior to that date. There is, therefore, ample evidence that the applicant believed itself to be entitled to the progress payment. Nothing more need be proved. To give the Act any other operation would be to defeat the clear intent of the legislation. The applicant was entitled to issue the payment claim even if it transpires that the project had not actually reached practical completion at the time it did so.

Did the payments claimed comply with the requirements of the Act ?

34. The Act, s17(2), sets out what is required to be included in such a claim (see s17(2)(a) to (g) inclusive). The payment claim authored by the applicant includes in it all those ingredients and includes the words: “This is a Payment claim pursuant to the Building and Construction Industry Security of Payment Act”. I find that the Payment claim is technically compliant with the legislation.

Was the Payment claim served in accordance with the Act ?

35. A payment claim may only be served within the period set out in s17(6). In this case that means that a payment claim must be made within the period as specified in the agreement in question or within 12 months after the building works or building related goods and services were last supplied – whichever is the latter.

36. The subject payment claim was, the evidence before me shows, sent by registered post to the respondent Frank Nadler on 23 July 2012, some seven weeks after the applicant contends that practical completion had been reached. It was therefore made and served within the time limited by the Act.

37. The contract itself does not specify any period for the applicant to make a payment claim or (to use the words in the contract a “claim for payment”.

38. The payment claim having been sent to the respondent Frank Nadler at his residential address by registered post on 23 July 2012 the Act, s40(a)(ii) is satisfied as to proper service on the defendant Frank Nadler having occurred as service by that method is one of the methods allowed for therein.

39. The evidence before me establishes that the respondents provided a payment schedule in response to the payment claim. That document is in evidence and is dated 7 August 2012. It is further in evidence that that document was e-mailed to the applicant on 7 August 2012 and was received by it on 8 August 2012 in the post.

40. The question is therefore whether the disputing payment schedule was provided to the applicant within the time limited by the Act. As a consequence of all of the above, if it was not the application before me must succeed.

41. In this case the applicant contends that the respondent had until 31 July 2012 to provide it with the payment schedule disputing the payment claim. The applicable allowable time frame for the provision of a payment schedule is dealt with by the Act, s19.

42. The effect of the s19 is that the recipient of a payment claim must “provide” to the claiming builder a payment schedule disputing the payment claim before the end of the period in which payment is required to be made under the contract in question or “before the expiry of the applicable day in the relation to the payment claim made to the respondent”, whichever period expires earlier. However, the provision has an exception in the case of claims made that relate to the building of a residential structure to be built on land where the recipient of the payment claim is the owner of that land and is not a “building practitioner”. In such a case the recipient of the payment claim is able to provide the builder with a payment schedule before the end of the period in which payment is required to be made under the contract in question or 20 business days after the payment claim is served on him, whichever is the later.

43. In the case of the Katrina Nadler it is accepted that she is not a “building practitioner” within the meaning of the Act. She is the owner of the land upon which the house was being built. The structure being built pursuant to the contract was of course a residential structure. Therefore Mrs Nadler had 20 days in which to provide the builder with a payment schedule disputing its payment claim.

44. However, the situation in relation to the respondent Frank Nadler is entirely different. By virtue of the fact that the evidence establishes without dispute that he holds a license under the Plumbers and Gasfitters Registration Act 1956 he is thereby a “building practitioner” within the meaning of the Act. Therefore in his case it was necessary that he provide the applicant with a payment schedule before the end of the period in which payment is required to be made under the contract in question (which is five working days) or within 10 business days after the payment claim was served on him, whichever is the earlier (s19(2)).

45. As noted above, the evidence before me establishes that the respondents were served with the payment claim on 24 July 2012.

46. The contract between the parties at Clause 27 provided that the owner must pay a progress claim within five “working days” after the relevant stage which was substantially completed and the builder had given the owner a claim pursuant to Clause 26 of the agreement. As the time for the making of payments on a claim for payment under the contract is five “working days” and that period is shorter than the 10 “business days” provided for in the Act then pursuant to the Act, s19(2)(b), Clause 27 of the contract prevails as it is the earlier time. That is, I find that the respondent Frank Nadler had five “working days” after being served with the payment claim to provide the builder with a payment schedule disputing the payment claim.

47. The evidence before me – which is not in dispute – is to the effect that the earliest possible date upon which it could be contended that the respondent, provided a payment schedule to the applicant was 7 August 2012.

48. That date is outside the five working days provided for under the contract – “working days” under the agreement being exclusive of Saturdays, Sundays or days that are wholly or partly public holidays throughout Tasmania.

49. As to the issue of service of the payment claim I note that the evidence reveals that the payment claim was sent from Launceston to the respondents at an address at Riverside in suburban Launceston. In the ordinary course of the post it would have arrived the following day, that is, 24 July as noted above. Even if it could be said that more time ought be allowed “in the ordinary course of the post” for the item to have been served, it is apparent that the payment schedule – even if it was provided on 7 August 2012 – was not provided to the applicant within five working days of service of the payment claim on the respondent. Therefore, having failed to provide to the applicant a payment schedule within the time applicable under the Act, Mr Nadler became liable to pay the claimed amount to the applicant. He did not do so.

50. Having failed to do so the applicant was at liberty to take up any of the options available to it under the Act – to do nothing or to institute proceedings to recover the payment as a debt or make an adjudication application under s21 in relation to the payment claim.

51. Therefore in light of all of the above the application must succeed consistent with the clear intent of the legislation that a claimant builder is entitled to its money in the event of the recipient owner failing to provide it with a payment schedule disputing the payment claim within the time applicable. This is precisely what has occurred in this case.

52. Of course in all this it should be remembered that the success of this application does not bring an end to the respondents’ rights to join issue with the applicant about what monies the applicant is entitled to pursuant to the contract. However, what it does mean is that the applicant is entitled to its monies from the respondent. The onus is then on the respondent to institute separate proceedings against the applicant if he wishes to do so. Of course, should a builder exercise the option available to him of instituting proceedings to recover monies not paid on a payment claim then in such action the respondents are precluded from bringing a cross claim for defending that action in relation to matters arising under or relating to the subject matter of the building or construction contract in those proceedings – see the Act, s17(8).

Further arguments

53. The respondents contend that the applicable time during which the respondent had to respond to the payment claim was 10 business days after the payment claim was served – see the Act s19(2) and (3), particularly s19(3)(b).

54. For the reasons expressed above, I do not accept that to be the case and I find the time allowed for them to respond to dispute a payment claim was five working days after service of the payment claim on him. However, if I am wrong as to that the applicant is still, in my view, entitled to the entry of judgment on this application.

55. Pursuant to the Acts Interpretation Act 1931, s29, a proper calculation of 10 business days after service of the payment claim on the respondent means that the respondent needed to “provide” the claimant with a payment schedule disputing the payment claim by Tuesday 7 August 2012.

56. It is the respondent’s submission that 10 business days after service on 24 July 2012 means that the payment schedule has to be provided to the applicant by Wednesday 8 August 2012.

57. I do not accept that argument as to the calculation of time. The applicant posted the payment claim to the respondents on 23 July 2012. I find that in the ordinary course of the post it would have been received by the respondents the following day, that is, on 24 July 2012. The respondents are deemed to have been served on that day. Pursuant to the Acts Interpretation Act 1931, s29(1), in the counting of days from that date one does not count the date of service, i.e. 24 July 2012. Rather counting of that 10 working days commences with 25 July 2012 being the first day. “Business days” is defined by the Act, s4A. Essentially for the purposes of this application during the relevant period that simply excluded Saturdays and Sundays. That being the case the respondents were required to “provide” a payment schedule to the applicant by 7 August 2012. If they failed to do so all the consequences referred to above flowed.

58. The evidence before me reveals that on 7 August 2012 (i.e. the tenth business day after service of the payment claim on the respondents) the applicant received an e-mail from the respondents’ solicitors which purported to be the respondents’ payment schedule pursuant to s18 of the Act. The applicant received that document by post the next day. The question therefore arises as to whether the provision of an e-mailed payment schedule on 7 August 2012 means that the respondents have complied with their obligation to “provide” a payment schedule to the applicant by that date.

59. The term “provide” as used in s19(2) is not defined. Indeed the Act is drafted in somewhat unfortunate terms. Pursuant to the Act, s17 a builder is required to “serve” payment claim on a recipient owner. However, the recipient of a payment claim is not required to “serve” a payment schedule to dispute that payment claim, but is rather required to “provide” it to the builder.

60. The service of notices is provided for by the Act, s40. The applicant here is a company and therefore pursuant to the Act at s40(b) it can be served by notices etc being left at or sent by post to its principal or registered office or its principal place of business or being faxed to its fax number or being e-mailed to its e-mail address if it has agreed to service by e-mail or by delivery to it by any other electronic method if it has agreed to service by that method.

61. Further pursuant to the agreement between the parties the matter of service is dealt with at Clause 6. Service can be effected by delivering to a party by hand, by posting to the party’s last known address or by facsimile transmission at the party’s last known facsimile number. Therefore the contract between the parties does not allow for “service” by e-mail. However, because of s40 of the Act the issue arises as to whether the provision of the e-mail document on 7 August is sufficient.

62. It is the applicant’s submission that the terms “serve” and “provide’ in the Act are used interchangeably and that the same meaning should be ascribed to each of them. The applicant says that the Act, s40(a)(iii), does not allow for a payment schedule to be provided by e-mail unless the applicant has agreed to be served by that method. There is nothing in the contract which allows for service (or provision) of a document to be made by e-mail.

63. It is the respondents’ contention that by its conduct the applicant should be found to have agreed to being served (or provided) with documents by e-mail.

64. In support of that contention the respondents have not filed any affidavit material. Rather on the hearing of this application they have sought to tender an e-mail from the applicant to the respondent Frank Nadler dated 10 July 2012 regarding overdue invoices. It is the respondent’s contention that provision of that e-mail by the applicant is evidence of agreement by conduct on the part of the applicant to be served (or provided with notices) by e-mail

65. On the hearing of the application the applicant objected to the tendering of that e-mail. It was admitted on the hearing of this application de benne esse. However, even taking that document at its highest, I find that it does not constitute an agreement that documents could be served (or provided) by e-mail. It is plain that parties to a contract may well communicate with each other and send documentation to each other by means that do not constitute service under the Act (or the contract). They may communicate by text message or orally. Further it should not be forgotten that the e-mail relied upon by the respondents simply relates to “invoices”, a creature unknown to the Act.

66. Fire Dam Civil Engineering Pty Ltd v KJP Construction (2007) NSWSC 1162 at paragraph 51 considered the New South Wales iteration of this legislation. For all intents and purposes the language of the Acts is relevantly identical. That case supports the applicant’s conclusion that “serve” and “provide” mean one and the same thing.

67. The issue of whether the term “provide” meant anything different from the term “serve” under the Act was also considered by the New South Wales Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2006) NSWSCA 259. In that case it was also submitted that the use of the words “provide” and “serve” suggested different meanings were intended by the legislature in using those different terms. It was suggested that the term “provide” simply suggested that the document in question must actually come to the notice of the person to whom it is provided. In this case it could therefore be argued that the applicant, having been made aware of the existence of a payment schedule by receipt of the e-mail on 7 August 2012, that that was the day that the document had been provided to it under the Act.

68. This argument was rejected by the court in Falgat (supra). The court also found that under the New South Wales legislation “serve” and “provide” meant the same thing. (See paragraph 61.)

69. In accordance with what Wright J decided in Swetnam Brothers Pty Ltd v Grundy (1997) TASSC 17 at 13 and 14 I am clearly bound to accept the decisions of the New South Wales Court of Appeal and New South Wales Supreme Court unless those can plainly be shown to be wrong or unless there is authority from the Supreme Court of this State to the contrary.

70. Accordingly I find that e-mailing the payment schedule to the applicant on 7 August 2012 does not mean that that document was provided to the applicant on that date. It was only provided to the applicant when it arrived by post the following day, that is on 8 August 2012. It having arrived on 8 August 2012, the payment schedule was ineffective.

71. Therefore, even if I am wrong at paragraph 46 above and the time for the providing of payment schedules is 10 business days after the service of the payment claim as the respondents contend, then the respondents have failed to comply with the Act as to providing a payment schedule to the applicant within the time allowed by the Act. On that basis the applicant’s application must succeed.

Disposition

72. I therefore order that judgment be entered for the applicant on the claim against him. I will hear the parties further as to the first respondent’s Defence be struck out and the matter of interest and consequential orders.