(ii) issued invoices to Complete for those Works for sums amounting to AUD$74,486.04 plus GST (being a total of AUD$81,934.64) (Invoiced Amount);

(e) the Asserted Contract was a construction contract within the meaning of the SPA, pursuant to which:

(i) LHRE's performance entitled it to progress payments;

(ii) the invoices, rendered in accordance with the Asserted Contract, constitute a payment claim;

(iii) since Complete did not issue a payment schedule in response to the payment claim, the Invoiced Amount became payable 25 days after the payment claim was made (being by 3 November 2023); and

(iv) Complete did not pay the Invoiced Amount by the due date (or at all) and, accordingly, LHRE is entitled to recover that amount as a statutory debt under s 27(2)(a);

(i) the 'relevant circumstances' required by s 27(4) are established and the plaintiff is entitled to judgment in the sum of the Invoiced Amount plus interest;

(ii) Complete may not now raise a defence in relation to matters arising under the Asserted Contract; and

(iii) for the purposes of RSC O 14, there is no real question to be tried and summary judgment ought to be given.

(a) the existence of a construction contract between the party giving and the party receiving the payment claim underpins the statutory regime under the SPA - it is the 'basic and essential requirement' of the scheme;[23]

(b) the SPA does not prevent a party which receives an asserted payment claim from raising any defence whatsoever; it only prevents one arising under the construction contract (if any);

(c) the identity of the parties is a material fact to LHRE's pleaded claim;

(d) Complete has adduced affidavit evidence to the effect that, before 1 June 2023, it engaged an entity other than LHRE - specifically, OSB Group Pty Ltd (OSB) - to perform the Works;

(e) the SPA does not determine whether summary judgment ought to be given; that question is to be determined in accordance with the ordinary principles applicable to RSC O 14 r 1;

(f) there is a real question to be tried regarding the parties to the contract (and therefore as to the existence of a construction contract between the parties to this action) (identity issue); and

(g) further, even if the Asserted Contract was found to exist between LHRE and Complete, then there is a question to be tried as to whether LHRE assigned its entitlement to payment to another entity (assignment issue).

1. Because LHRE relies on the SPA - specifically, the provisions relevant to making and defending an SPA debt claim - it is essential to the application that it can establish that:

(b) there is no (arguable) defence to the SPA debt claim, or part thereof.

(i) it could only rely on the provisions of the SPA if the Asserted Contract was a construction contract to which it was a party; and

(ii) if there was a triable issue in that regard, then summary judgment could not be given; but

(b) argued that, on analysis, there could be no ambiguity about the parties to the contract (and, therefore, as to the proper claimant).[24]

1. The documentary evidence available to the court:

(a) is annexed to the O'Shea affidavits, filed in support of the application, and to the Dillion affidavit, filed in opposition to the application; and

(b) largely comprises email communications between various individuals.[25]

1. Of particular relevance to the identity issue, Mr Kevin O'Shea (Kevin)[26] attests to the effect that:

(a) he and his brother, Mr Michael O'Shea (Michael), are the directors of and run the business of each of:

(i) LHRE, which company 'is in the business of labour hire for discrete works on construction projects'; and

(ii) OSB, which company performs contract works on projects;

(b) on 17 May 2023, Mr Emanuel Dillon, Complete's managing director,[27] called Michael to see if labour could be provided in respect of the Works;

(c) at around the same time, Mr Dillon and Michael had also been discussing works to be completed by OSB on a different project;

(d) on 18 May 2023, Mr Dillon sent an email to Kevin confirming the start date of the Hotel project and the labour and tools required;

(i) received a telephone call from Mr Ian Massey, Complete's onsite project manager, with instructions to mobilise two carpenters, two labourers and a plumber to the site;

(ii) sent an email to Mr Dillon to identify available labour and to confirm 'the Plaintiff's' labour rates and mobilisation costs; and

(iii) Mr Massey confirmed those arrangements by forwarding the email chain to Complete's operations manager, Ms Gemma Lees;

(f) on 29 May 2023, Kevin sent an email to Mr Massey enclosing 'the Plaintiff's' credit application form and standard labour hire terms and conditions' (credit application);

(g) on 1 June 2023, labour supplied by LHRE arrived at site;

(h) Complete has signed various dayworks sheets 'acknowledging the labour hire provided by the Plaintiff to the Defendant on site'; and

(i) 'the Plaintiff' has issued an invoice for the Works, which invoice has not been paid.

1. The responsive affidavit of Mr Dillon is to the effect that:

(i) Complete, which company provides building services, including to some of its related entities; and

(ii) Spinifex Holdings (WA) Pty Ltd, which company operates the Hotel;

(b) in May 2023, Mr Dillon and Mr Massey had discussions to the effect that OSB was interested in tendering on a different project in which Complete was engaged, and that they might use OSB to carry out works on the Hotel beforehand to 'see how they performed';

(c) by email on 10 May 2023, Mr Massey proposed a meeting with 'Michael and Kevin [from] OSB';

(d) on 12 May 2023, Mr Massey and Mr Dillon met with Michael and Kevin to discuss the proposed repair works at the Hotel and, a few days later, Mr Dillon telephoned Michael to take that discussion further;

(e) on 18 May 2023, Mr Dillon received an email from Kevin;

(f) between 26 May 2023 and 30 May 2023, various emails were exchanged between Kevin and Mr Dillon, Mr Massey and Ms Lees in relation to organising the Works;

(i) Kevin and Michael referred to themselves as being 'from OSB';

(ii) sent emails from email addresses with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email; and

(iii) other than attaching the credit application to an email sent on 29 May 2023, did not refer to LHRE in connection with the Works;

(h) after the commencement of the Works on 1 June 2023, Mr Dillon met and spoke with 'OSB's site supervisor', Mr Jamie McPherson, who did not refer to LHRE in connection with the Works;

(i) through June 2023, email communications from Michael and Kevin in connection with the Works came from email addresses with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email;

(j) on 4 July 2023, Mr Dillon received an email from Mr Jamal Uddin, described therein as 'Accountant':

(i) from an email address with the domain name 'osb.com.au' and with the OSB logo at the bottom of the email; and

(ii) attaching a tax invoice referencing various attached dayworks record sheets, the latter bearing both the OSB and LHRE logos, with a checkbox beside each. In each case, the OSB checkbox was ticked;

(k) Mr Dillon did not sign the credit application and did not, at that time, know who LHRE was; and

(l) the contract for the Works was between Complete and OSB.

1. The central question is whether the affidavit evidence so clearly establishes that there was a contract between Complete and LHRE that the court can be satisfied that there is no real question to be tried in that regard. That question must, in my view, be answered in the negative.
2. The evidence is to be approached in the following way:[28]

An application for summary judgment is to be determined on the basis that the version of facts put forward by the respondent to the application, assuming that it is not inherently incredible, would ultimately be accepted at the trial of the action. The court is not bound to accept uncritically as raising a dispute of fact calling for further investigation every statement in an affidavit, however equivocal, lacking in precision or inconsistent with contemporary documents or other statements by the deponent. If after argument there remains real uncertainty as to the applicant's right to judgment without further investigation of the facts, summary judgment must be refused.

(footnotes omitted)

1. To a large degree, the affidavit evidence of the parties is not in direct conflict.
2. Both deponents agree that various conversations and email communications took place in May 2023 regarding the deployment of labour in connection with the Works.
3. The O'Shea affidavits refer to 'the Plaintiff' in connection with some of those communications, but that evidence is not specific as to the words used by the individuals themselves (specifically, whether LHRE or OSB was discussed), other than by reference to the annexed documents. In some of those instances, the documents themselves do not specify, or do admit of some ambiguity as to, LHRE being the relevant party.[29]
4. The Dillon affidavit focuses largely on what was not said in the relevant communications.
5. Both deponents rely heavily on the documents annexed to the various affidavits. There does not appear, for these purposes at least, to be any serious factual dispute in relation to the veracity or provenance of those annexed documents, or even what is said in the affidavits about the documents (as opposed to what conclusions can be drawn from them).
6. The central departure is that each of Mr Dillon and Mr Kevin O'Shea have different views about the capacity in which Kevin and Michael were meeting and corresponding with Mr Dillon (and other Complete personnel) in relation to the Works. Those divergent and subjective views do not give rise to the sort of conflict of fact that the court is called upon to determine (at least for these purposes).
7. Complete argues that the identity of the contracting parties is ambiguous on the documents and, accordingly, the court is tasked with determining that question objectively, construing the documents in the factual matrix in which they were created.[30] I accept that submission.
8. The pleaded case is that the Asserted Contract is partly oral, partly in writing and partly by performance. Accordingly:

(a) this is not a case where recourse may be had to the 'four corners' of an executed, written contract; and

(b) there are in my view triable questions of fact in relation to the matters that are said to give rise to the Asserted Contract and its terms.

1. LHRE places particular weight on the credit application, which contains the following clause (acceptance clause):

Your acceptance of subsequent employment of referred candidates from LHRE will constitute your agreement to the standard terms and conditions.

(a) the acceptance clause operated to prescribe a method of acceptance, as LHRE was entitled to do;[31]

(b) when labour was proffered on site, it was accepted by Complete and so the clause is engaged; and

(c) there can be no contest about this because Mr Kevin O'Shea attests that the labour was supplied by LHRE and because Complete signed off on the dayworks sheets.[32]

1. I reiterate that that position is not to be assessed, for these purposes, on the basis of whether or not it is likely to succeed at trial. Rather, the question is whether it is so obviously correct, and the conclusion so unavoidable, that there is no room for argument about it.
2. Relevant to that assessment, I note that:

(a) whether or not the Works were in fact performed (and labour supplied) by LHRE, Mr Dillon's affidavit evidence is to the effect that Complete engaged with OSB to perform the Works;

(b) Mr Dillon's affidavit evidence proffers an explanation, not inherently inconsistent with contemporaneous documents, for why he did not sign the credit application, being that he sought to engage OSB;

(c) as to the contemporaneous documents, it is evident that all of the key email correspondence from Kevin and Michael to Complete was sent from an OSB email address, and bore the logo of OSB (rather than that of LHRE); and

(d) despite the invoice of 4 July 2023 itself bearing the LHRE logo, the dayworks sheets to which it refers give rise to ambiguity on this point because they bear the logo of both OSB and of LHRE, and the checkbox next to the former is ticked.

1. In my view, there is sufficient ambiguity in the documents for there to remain triable questions as to:

(a) whether the acceptance clause is engaged even if Complete reasonably understood the labour to be supplied by OSB; and

1. I have concluded that the identity issue is arguable and is appropriate to be resolved at trial. I find that:

(a) LHRE has not made out a prima facie case that there was a construction contract between it and Complete such as to satisfy the requirements of O 14 r 1; and

(b) Complete has shown cause against the application on this issue.

1. The conclusion at [51] is sufficient to dispose of the application. However, for completeness, and in the event that I am wrong on that point, I turn briefly to consider the assignment issue.
2. Complete points to:

(a) documents annexed to the affidavits tendered in the application which show that LHRE sent claims for payment to Complete,[33] which bear the following:

All amounts payable under contracts to which this invoice relates, have been transferred to scottish pacific(BFS) pty ltd('ScotPac').

This means your cheques must be made payable to Scot Pac and be sent direct to it at GPO Box 9969 Perth WA 6001 or by our preferred method of payment ...

Payment to any other person will not constitute a valid discharge of the debt.

(b) the affidavit evidence of Mr Dillon to the effect that Complete was directed by LHRE to make payments to 'ScotPac'.[34]

1. This, it argues, constitutes an assignment of any entitlement to payment under the Asserted Contract, which disentitles LHRE from making an SPA debt claim in relation to amounts said to be owed under that contract.
2. I note that the issue of assignment has been considered in cases under the equivalent statutory scheme in New South Wales.[35] That case law offers, in my view, a sufficient basis for the conclusion that there is a triable issue in relation to assignment.
3. I have concluded that the assignment issue is arguable and is appropriate to be resolved at trial. I find that:

(a) LHRE has not made out a prima facie case that it is entitled to bring an SPA debt claim against Complete such as to satisfy the requirements of O 14 r 1; and

(b) Complete has shown cause against the application on this issue.

1. Costs ordinarily follow the event and, subject to hearing from the parties, I am inclined to follow that usual course in relation to the application.

1. I will hear submissions as to the precise terms of the orders that should be made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Replacing the former Construction Contracts Act 2004 (WA).

[2] RSC O 14 r 1, O 14 r 2. See also: Westpac Banking Corporation v Anderson [2017] WASC 106 [102] - [103] (Westpac).

[3] RSC O 14 r 3(1), O14 r 4(1). See also: Perpetual Trustee Company Ltd v Nikoloff [2020] WASC 389 [13] (Nikoloff); Deputy Commissioner of Taxation v Howley [2021] WASC 82 [13].

[4] Westpac [103], citing Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18, 23; Manton Enterprises Pty Ltd as trustee for GPK No 2 Trust v LT Market St Pty Ltd [2021] WASC 4 [38].

[5] RSC O 14 r 3(1). See also: Smith v McCusker QC [2005] WASCA 226 [88].

[7] Zaghloul v Bayly [2021] WASCA 125 [116] - [117]. See also: Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[8] SPA s 9(1). In the remainder of this decision, unless otherwise identified, any reference to a statutory provision is a reference to the SPA.

[15] Specifically, 15 days after the payment claim is made, or such time as is provided under the construction contract.

[16] SPA s 26 (read with SPA s 20 as to the due date).

[17] SPA s 27(2)(a). In the alternative, but not relevant for present purposes, the claimant may make an adjudication application in relation to the payment claim: SPA s 27(2)(b).

[20] Plaintiff's written submissions, par 24; citing Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317 [180], [185].

[21] Plaintiff's written submissions, par 21 (citing Robert McDougall KC, 'The Building & Construction Industry Security of Payment Act 1999' (September 2004) [dealing with the equivalent Act in NSW], noted in Annotated Building & Construction Industry Security of Payment Act [SOP15.80]).

[23] Defendant's written submissions, pars 5 and 17 (citing BSA Advanced Property Solutions (Fire) Pty Ltd v Ventia Australia Pty Ltd [2022] NSWCA 82; (2022) 108 NSWLR 350 [32]; Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132 [23], [36]).

[25] Exceptions comprise: a letter of demand dated 10 November 2023 and an undated form letter (respectively, KPO11 and KPO13 of the O'Shea affidavits) and an ASIC extract relating to Spinifex Holdings Pty Ltd (ERD-1 of the Dillion affidavit).

[26] Because there are two relevant persons who meet the description of 'Mr O'Shea', I have used first names to identify and distinguish between Mr Kevin O'Shea and Mr Michael O'Shea.

[27] Described in the O'Shea affidavits as 'the Defendant's General Manager', but described in the relevant signature box of the annexed email chains as 'Managing Director'.

[28] Nikoloff [14]. See also: Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; Ansearch Ltd v Wavtech Pty Ltd [2006] WASC 184 [28].

[29] For example, the email referred to at [34(e)(ii)] refers to labour rates and costs, but does not refer to LHRE and is sent from an OSB email address, with an OSB logo after Kevin O'Shea's name. The documents referred to at [34(h)] - [34(i)] also admit of some ambiguity, as described in [49(d)] below.

[30] Defendant's written submissions, par 20, citing Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; (2009) 77 NSWLR 299 [28].

[31] Plaintiff's written submissions, par 48, citing R v Clarke [1927] HCA 47; (1927) 40 CLR 227, 233; George Hudson Holdings Ltd v Rudder [1973] HCA 10; (1973) 128 CLR 387, 392, 395, 398, 402; Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617, 623.

[32] ts 30 May 2024, pages 15 - 16, 20 - 23.

[33] Defendant's written submissions, par 33. See KPO5 and KPO6 of the O'Shea affidavits, and ERD-7 of the Dillon affidavit.

[34] Defendant's written submissions, par 34, referring to the Dillon affidavit, pars 36 - 37 and ERD-8, ERD-9.

[35] Quickway Constructions Pty Ltd v Electrical Energy Pty Ltd [2017] NSWCA 337; West Tankers Pty Ltd v Scottish Pacific Business Finance Ltd [2017] NSWSC 621.