• These contractual breaches nullified the validity of the Progress Claims both as grounds of contractual entitlement and in their statutory function as "payment claims". The due date for payment of the statutory debts never arose.
55 The two experts gave contradicting evidence as to the sufficiency of the information provided, not specifically with reference to the contractual setting. Neither was cross-examined, leaving the trial judge (at [54]) unable to resolve the apparent conflict between their testimony concerning the "evidence of the amount due". His Honour further held that the second sub-issue (ie whether there was such information as the Superintendent might reasonably require) was not assisted by Mr Tucker's testimony. This was because Mr Tucker was not the "Superintendent" and there was no evidence that the Superintendent, IPS, required any information in relation to either progress claim. On this basis, his Honour (at [55]) did not think that the issue arose in fact.
56 The trial judge continued:
56 But even if it did arise in fact, it would afford no defence. That follows from the provisions of ss 14 and 15.
57 By s 14(4), where a claimant (ie, by reference of s 13(1), a person who is or claims to be entitled to a progress payment) serves a payment claim on a respondent (ie, by reference s 14(1), the person on whom the payment claim is served) and where the respondent does not provide a payment schedule within the relevant time limit, "the respondent becomes liable to pay the claimed amount to the claimant on the due date ...".
58 Section 15 applies, as sub s (1) makes clear, where a respondent has become liable under s 14(4) and has not paid the whole or part of the claimed amount before its due date. In those circumstances, by sub s 2(a)(i), the claimant may "recover the unpaid portion of the claimed amount from the respondent, as a debt due".
59 Where a claimant commences proceedings under s 15(2)(a)(i) to recover the unpaid portion of the claimed amount as a debt, the respondent is not entitled, among other things, "to raise any defence in relation to matters arising under the construction contract": s 15(4)(b)(ii).
60 In my judgment, the defence raised under issue 7 is a defence of the kind that, by s 15(4)(b)(ii), Clarence Street "is not entitled ... to raise".
[Issue 7 had earlier been identified by his Honour as whether the Progress Claims were supported by evidence of the kind required under cl 42.1.]
57 The appellant submits that the judge erred in viewing s15(4)(b)(ii) as dispositive.
58 The appellant further submitted that the Progress Claims were not valid according to the contractual dispensation of cl 42.1. Clause 42.1 had not been complied with because of the insufficiency of the supporting evidence/information.
59 The respondent submitted that validity of a payment claim according to s13(2) is all that is required in proceedings under the Act. Thereupon s11(1) fixes the date on which the progress payment becomes due and payable as a statutory debt. That date accrued well before proceedings were commenced, either because it was expressed in cl 42.1 in effect as the 18th day of the month after receipt by the Superintendent of the Progress Claim (cf s11(1)(a)) or because it occurred 10 business days after any payment claim embodied in the Progress Claim was made (cf s11(1)(b)).
60 The appellant's submission that invokes cl 42.1 as an additional basis for invalidating the payment claim should be rejected for several reasons.
61 First, it trespasses into the area forbidden by s15(4)(b)(ii). I agree with the trial judge in this regard.
62 Secondly, nothing in the facts suggests that any contractual pre-condition of validity was unmet. Each Progress Claim was supported by evidence of the amount due. And there was no withholding of "such information as the Superintendent may reasonably require", because no such information had been required by the Superintendent before the Progress Claims were sent (cf Brewarrina Shire Council v Beckhause Civil Pty Ltd (2003) 56 NSWLR 576 at 586[44]). Indeed, none was required afterwards either (McDougall J at [55]).
63 Thirdly, cl 42.1 did not express a date for payment other than 28 days from the end of the month after receipt by the Superintendent of the claim. This is so even if, which I doubt, the clause conditioned the obligation to pay upon provision of the supporting evidence of amount due and of the information that the Superintendent had reasonably required. The contractual stipulation for provision of evidence and information did not make that evidence or information part of the payment claims (Brewarrina at 582[20]). In the unlikely event that there was a gap in the contractual expression of a due date for making the progress payment, s11(1)(b) supplied that gap, indicating dates that had come and gone by the time proceedings in the Supreme Court were commenced.
64 The appeal should be dismissed with costs.
65 GILES JA: I agree with Mason P.
66 SANTOW JA: I agree with Mason P.
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