Allpro Building Services v C&V Engineering Services [2009] NSWSC 1247 (17 November 2009)

Last Updated: 20 November 2009

NEW SOUTH WALES SUPREME COURT

CITATION:

Allpro Building Services v C&V Engineering Services [2009] NSWSC 1247

JURISDICTION:

Equity Division

Technology & Construction List

FILE NUMBER(S):

55110/09

HEARING DATE(S):

17 November 2009

EX TEMPORE DATE:

17 November 2009

PARTIES:

Allpro Building Services Pty Limited (ACN 092 293 104) (Plaintiff)

C&V Engineering Services Pty Limited (ACN 003 275 134) (Defendant)

JUDGMENT OF:

McDougall J

LOWER COURT JURISDICTION:

Not Applicable

LOWER COURT FILE NUMBER(S):

Not Applicable

LOWER COURT JUDICIAL OFFICER:

Not Applicable

COUNSEL:

F G Kalyk (Plaintiff)

F C Corsaro SC (Defendant)

SOLICITORS:

Church & Grace (Plaintiff)

KQ Lawyers (Defendant)

CATCHWORDS:

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act - validity of payment claim - whether made with respect to a reference date the subject of previous claims - whether this aspect of Brodyn decided incorrectly - whether estoppel created by adjudication of earlier payment claims - whether claims replicated by separate entities - whether an abuse of process.

LEGISLATION CITED:

Building and Construction Industry Security of Payment Act 1999

CATEGORY:

Separate question

CASES CITED:

Associated Midland Corporation Limited v Bank of New South Wales (1984) 51 ALR 641

Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27 ; (2006) 226 CLR 256

Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34

Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416

Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405

University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635

Urban Traders v Paul Michael [2009] NSWSC 1072

Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 , Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27 ; (2006) 226 CLR 256

TEXTS CITED:

DECISION:

See paras [26] to [27] of the judgment.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

17 November 2009 (ex tempore – revised 17 November 2009)

55110/09 ALLPRO BUILDING SERVICES PTY LIMITED v C&V ENGINEERING SERVICES PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff (Allpro) and the first defendant (Engineering) are parties to a construction contract made on about 22 February 2008. Under that contract, Engineering, a steel works fabricator, agreed to manufacture and supply structural steel and related items to Allpro, a builder, in respect of a development at Potts Point. It is common ground that the construction contract was one to which the Building and Construction Industry Security of Payment Act 1999 (the Act) applied.

Factual background

2 Engineering has made a number of progress claims, which were payment claims for the purposes of the Act, during the currency of the work. Unfortunately, identification and understanding of the real issues in dispute between Allpro and Engineering has not been facilitated by the way in which Engineering has chosen to submit its claims. The present dispute concerns a payment claim made on 2 October 2009. A total of $314,608.10 was claimed. The claim was advanced by reference to a substantial number of invoices rendered over a period of time from March 2008 to February 2009.

3 Four of those invoices were the subject of a determination by an adjudicator, Mr Hillman (the Hillman determination). The amount determined by Mr Hillman, $117,486.92, has been paid.

4 Another four of the invoices identified in the payment claim of 2 October 2009 are said to have been rendered by an associated company of Engineering known as C & V Engineering Steel Construction Services Pty Limited (Steel). There is a dispute between Allpro, Engineering and Steel, as to who might be the appropriate entity to claim payment for at least the work comprised in what I will call the four Steel invoices.

5 One of the four Steel invoices, the first one identified, claiming $193,613.53 is effectively replicated in a payment claim made by Engineering on 30 September 2008 (which is the same date as the relevant invoice by Steel bears). However, the payment claim of 2 October 2009 does not identify or refer to Engineering's version of the particular invoice.

6 In those circumstances, Allpro claims, there is an abuse of process, such that the payment claim should not be permitted to proceed to adjudication. I should note that Engineering has applied for adjudication of the payment claim; the authorised nominating authority appears to have referred the application to an adjudicator; and the matter is presently in suspense while this dispute is resolved.

7 It is not easy to tease out, either from the list statement, the outline of submissions provided or the submissions made in court today, the real nature of Allpro's complaints. That is because many of the complaints involve references to extraneous and irrelevant material. Doing the best I can, I think, the issues involve the following elements.

The reference date issue

8 First, it is said, it was not open to Engineering to make the payment claim in question (of 2 October 2009) because earlier payment claims had been submitted in respect of the same reference date. Mr Kalyk of counsel, who appeared for Allpro, accepted that this submission ran into the significant obstacle of the decision of Hodgson JA in Brodyn Pty Ltd v Davenport [2004] NSWCA 394 ; (2004) 61 NSWLR 421 at 443 [62] - [63] . In those paragraphs, Hodgson JA (with whom Mason P and Giles JA agreed) said, in effect, that s 8(2) of the Act could not be construed in the manner advanced by Mr Kalyk in support of this limb of Allpro's case.

9 Mr Kalyk submitted that Hodgson JA erred in the approach that he took; that what his Honour said was not binding on me; and that support for the proposition of error could be obtained from the decision of the Court of Appeal in Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69.

10 For the reasons that I gave in Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405 at [19] - [21] , I do not think that it is open to a court of first instance to proceed on the basis that the relevant aspect of the decision in Brodyn was incorrect. Although Rubana was decided before Dualcorp , that does not seem to me to change the position. If there is something in Dualcorp which renders it appropriate for this aspect of the reasoning in Brodyn to be re-examined, that is a matter for the Court of Appeal.

11 For those reasons, I conclude that I am bound to reject this limb of Allpro's submissions.

The estoppel issue

12 The next limb of Allpro's submissions focussed on the fact that four of the invoices that were wrapped up in the payment claim dated 2 October 2009 had been the subject of the Hillman adjudication. Mr Kalyk submitted, basing himself on the decision in Dualcorp, that the previous determination created an issue estoppel. He submitted further, basing himself on Dualcorp and subsequent decisions (including my own decision in Urban Traders v Paul Michael [2009] NSWSC 1072 , in which I looked at the post Dualcorp decisions) that there was an abuse of process.

13 The difficulty with this argument seems to me to be that although the relevant invoices are repeated in the payment claim, the payment claim gives credit for the amount of the Hillman determination which, as I have said, has been paid. I have no idea why Engineering saw fit to proceed in this somewhat cumbersome fashion. It created a degree of confusion by doing so because, arithmetically, the amount determined by Mr Hillman is somewhat less than the total of the four invoices in question. That is because, of the first of those invoices (in the sum of $42,658), only $17,658 was actually pressed before Mr Hillman and found by him to be owing. The balance of $25,000 had apparently been paid, in the sense that Engineering had allocated that amount, from other amounts paid by Allpro to date, against the invoice in question.

14 The payment claim of 2 October 2009 gives credit for all amounts paid by Allpro to date. It does not make it clear that of those payments, in addition to the amount determined by Mr Hillman and paid, some $25,000 has been allocated to the invoice in question. If that had been made clear then it would be crystal clear to all concerned that although the four invoices in question were repeated, it was not asserted that any amount was owing in respect of them.

15 Nonetheless, having regard to what Engineering accepts the position to be, and to the ability of Allpro to rely upon that effective concession in any adjudication that proceeds, I do not regard either the repetition of the four claims at large or the confusion as to one of them in particular as falling within the circumstances said to give rise to issue estoppel or to abuse of process, so as to warrant the grant of injunctive relief. I should perhaps explain that last comment. I accept, based on Dualcorp , that the Hillman determination creates an issue estoppel. I accept that it applies to the four invoices in question and to Mr Hillman's valuation of them. However, in circumstances where, effectively, credit is given for the valuation (so that the issue estoppel is respected) and the only doubt, as to the $25,000, is readily capable of explanation, I do not regard the form of the payment claim in question as requiring the grant of injunctive relief.

16 Having said that, I will reiterate what I said earlier. It would have been better if the four invoices had not formed part of the payment claim and if the confusion caused by their inclusion had not arisen.

The abuse of process issue

17 The next limb of complaint relates to the four Steel invoices. Each is referred to (in the payment claim of 2 October 2009) in a generic way as an "invoice", of which details of date and invoice number are given, and is said to be "attached". When one goes to the attachments, it is clear that in each case the invoice is not one rendered by the claimant (Engineering) but by its associated company (Steel). What is equally clear, at least by implication or inference, is that by some means Engineering is asserting an entitlement to be paid under the construction contract between it and Allpro for work said to have been done by Steel.

18 Engineering does not resile from the proposition that the work was done by Steel. It submitted, as part of the adjudication application founded on the payment claim of 2 October 2009, a statutory declaration made by its director, Mr Mario Pizzolato. Mr Pizzolato is also, he says, "the appointed representative" of Steel. In that statutory declaration, Mr Pizzolato makes it clear, explicitly, that the amount claimed under the four invoices (with some arithmetical confusion) is owing to Steel for work performed by it pursuant to some agreement or arrangement. On that basis, and subject to the question of arithmetic confusion, it is hard to see what legitimate complaint Allpro might have. It is able to say two things. The first is that on the face of the payment claim of 2 October 2009, the amount claimed under the four Steel invoices cannot be owing to Engineering, because they are claimed not by it but by another company in invoices issued by that other company. As Gibbs CJ pointed out in Associated Midland Corporation Limited v Bank of New South Wales (1984) 51 ALR 641 at 643-644, an invoice is, at least prima facie, evidence of an underlying contract between the party giving it and the party to whom it is given. Secondly, and more cogently, Allpro has the benefit of Mr Pizzolato's statutory declaration confirming that obvious inference. It is able to raise those matters by way of submission in opposition to so much of the payment claim of 2 October 2009 as is based on the four Steel invoices.

19 However, matters do not end there. Steel had sought adjudication of the payment claims comprised in the four Steel invoices. That adjudication application had been referred to Mr Hillman, and had been determined by him at the same time as he determined Engineering's application in the way that gave rise to what I have called the Hillman determination. In his determination on Steel's payment claim, Mr Hillman took the view that he was not satisfied that there was any construction contract between Steel and Allpro, and accordingly found that there was nothing owing in respect of the invoices. It may be that it is this finding (which was based on the position adopted by Allpro, and presumably on the absence of any proved contractual documentation) that has led Engineering now to try and make the claims in its own right.

20 Not satisfied with Mr Hillman's determination, Steel commenced proceedings in the District Court of New South Wales in respect of two of the four Steel invoices. The invoices that are the subject of those District Court proceedings include the one which is first in the list, in the sum of $193,613.53. The cause of action alleged in the amended statement of claim is that Steel performed the work that is the subject of those invoices at the request of Allpro, and that Allpro is bound to pay Steel for the value of that work. That claim is verified by the oath of Mr Pizzolato as authorised representative of Steel. Again, one might think, the verified amended statement of claim would provide powerful support for a submission by Allpro to an adjudicator that, at least in respect of the two invoices with which the District Court proceedings are concerned, the claim is not a claim of Engineering but a claim of a separate corporate entity, Steel.

21 However, Mr Kalyk submitted that there was an abuse of process constituted by the claims being pressed by Steel in one forum (in the District Court, as to two of the invoices) and by Engineering in another forum (in the proposed adjudication, in respect of all four invoices).

22 When I considered the concept of abuse of process in Urban Traders , I sought at [43] to make it clear, among other things, that it could not be said in some exhaustive fashion what combination of factors would lead to the conclusion that there is an abuse of process. However, I certainly did not intend to suggest that it could be an abuse of process for a claim in respect of two invoices to be brought against a defendant in one forum by a plaintiff, and for a different claim in respect of those two invoices and two others to be brought against the same defendant in another forum by a different claimant. To my mind, even though (as I am prepared to assume for the purposes of argument) the plaintiff in one forum and the claimant in another might be related, and might be effectively controlled by the same individual or group of individuals, that would be a very significant extension of the concept of abuse of process as that concept has been understood and explained in many decisions. I refer, in particular, to decisions of the High Court of Australia in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 , Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27 ; (2006) 226 CLR 256 and Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34 , as well as to the decisions of Rein J in Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416 and Hammerschlag J in University of Sydney v Cadence Australia Pty Ltd [2009] NSWSC 635. In all those cases, the essence of the abuse of process is that it is the one person’s actions in prosecuting vexatious or multiple claims that constitute the abuse. They do not appear to contemplate the situation that I have sketched as being relevant in these proceedings. Mr Kalyk did not refer me to authority that might suggest that the concept of abuse of process could be expanded in the way for which he contended.

The replicated claim issue

23 Finally, in dealing with the complaints that have been made, I note that the first of the Steel invoices, the one for $193,613.53, has been, as I have said, effectively replicated in a claim by Engineering. Mr Kalyk submitted that, by the payment claim dated 2 October 2009, Engineering was advancing a claim for the subject matter - the construction work or related goods and services - that is referred to in its invoice replicating Steel's invoice for the sum in question. I do not accept that submission. Engineering's invoice for the sum in question is not referred to in the payment claim of 2 October 2009. The only invoice that claims the sum in question that is referred to in, or as I understand it annexed to, the payment claim is the invoice issued by Steel to which I have referred. It is clear, I think, that Engineering is asserting, on a basis that is somewhat difficult to follow, an entitlement to be paid in respect of the invoice issued by Steel. It is not in terms asserting an entitlement to be paid for its own equivalent of that invoice.

24 In those circumstances, Mr Kalyk's alternative submission as to abuse of process, based on the proposition that Engineering had not only issued but also was claiming for its own invoice in the sum in question, fails at the level of fact and need not be considered at the level of application or principle.

The repetition issue

25 Mr Kalyk sought to submit further, and in more general terms, the payment claim of 2 October 2009 repeated earlier payment claims that had been advanced at different times. However, even if that is so, it does not mean that there is an abuse of process or an issue estoppel. Those concepts become relevant to the extent that any of the payment claims have been the subject of prior adjudication (or, of course, of Court proceedings) or to the extent that any of those invoices is being propounded in a way that makes it relevantly an abuse of process. Repetition by itself does not seem to do so, particularly in circumstances where the Act acknowledges in at least two places that a claim may be advanced more than once (see s 13(6) and s 22(4)).

Conclusion and orders

26 In circumstances where the only real concern with the payment claim relates to the apparent failure to make it clear that the whole amount of the four invoices that were the subject of the Hillman adjudication has been dealt with and paid one way or another, and where that of itself does not seem to me (for the reasons given earlier) to justify interfering with the adjudication process, I conclude that the summons should be dismissed with costs and I so order.

27 I note that the first defendant offers to the plaintiff an undertaking inter partes that it will not file any Adjudication Certificate as a judgment for a debt without giving the plaintiff a week's prior written notice of its intention to do so, and that on the basis of that undertaking the plaintiff does not pursue an application for interlocutory relief while it considers its position in relation to the Brodyn point.

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LAST UPDATED:

19 November 2009