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[2025] QSC 167
Here, Kelly J addressed whether a payment claim which failed to identify all of the work the subject of the claim, but identified the vast majority of it, was appropriately characterised as a valid payment claim under s 68(1)(a) Building Industry Fairness (Security of Payment) Act 2017. After exhaustively examining whether individual items in the claim were identified sufficiently, having regard to the background of each of the parties “derived from their past dealings and exchanges of documentation”, his Honour confirmed that the claim complied with the requirements of the Act.
Kelly J
18 July 2025
The applicant argued that a document purporting to be a payment claim which had been issued by the first respondent did not meet the statutory definition of a “payment claim” since it did not identify the construction work or related goods and services to which the progress payment related as required by s 68(1)(a) Building Industry Fairness (Security of Payment) Act 2017. Instead, the payment claim was said to either not describe any work at all or, alternatively, used percentages to indicate how much work had been completed. [4]. The applicant claimed that the document was deficient since the words used within the payment claim described trade packages instead of work performed, and it was impermissible to use percentages to describe the work performed since that did not establish what work had been undertaken. [36]. It argued that it was “insufficient to be construed as … any description of work.” [37]. In addition, the applicant queried the soundness of an adjudication decision pursuant to which the second respondent determined that the amount of $103,509.44 was payable by the applicant to the first respondent pursuant to the payment claim. [2].
In addressing the merits of those claims, his Honour noted that in MWB Everton Park Pty Ltd v Devcon Building Co Pty Ltd [2024] QCA 94, [24], [26], Dalton JA observed that in considering whether work has been sufficiently identified, the courts adopt a practical, and not overly technical, approach. In addition, in approaching the task of construction, the background of each of the parties “derived from their past dealings and exchanges of documentation” is to be given due attention (rather than confining the inquiry to the actual documents comprising the payment claim): see T & M Buckley Pty Ltd v 57 Moss Rd Pty Ltd [2010] QCA 381, [14]; Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2011] 1 Qd R 17, [25]; Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) (2005) 64 NSWLR 462, [48]. It is sometimes the case that, whilst a payment claim may appear indecipherable on its face, it may be meaningful to the parties involved and able to be understood by them: see Leighton v Arogen [2012] NSWSC 1323, [69]; and ISIS Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714, [36]–[37].
With the assistance of previous correspondence exchanged between the parties, [38] and adopting an objective interpretation of the fourth payment claim’s worksheet, [40] notwithstanding the fact that it had failed to identify all of the work the subject of the claim, his Honour determined it was still properly characterised as a payment claim. His Honour held as follows [40]–[45]:
(1)The adjudication decision which had determined that the amount was payable by the applicant to the first respondent, pursuant to the payment claim, was not void for want of jurisdiction;
(2)Since the most substantial claim items (four in total, accounting for about 90.68 per cent of the entire amount claimed) adequately identified the construction work and services the subject of the fourth payment claim, “[h]aving regard to the characterisation exercise necessary to be undertaken by reference to the entirety of the fourth payment claim, the fourth payment claim is appropriately characterised as a valid payment claim and no jurisdictional error has been established”. [45].
Disposition
The originating application was dismissed, and the parties were heard as to costs.
A Jarro