Victorian Civil and Administrative Tribunal|2008-05-05

The applicant applies for payment of a sum certified by the architect under an ABIC SW-1 Simple Works Contract. There is a dispute between the parties as to the identity of the builder - whether it is the applicant, Krongold Constructions (Australia) Pty Ltd ('KCA') or Krongold Constructions Pty Ltd ('KC'). Although KCA is named as the contractor, the ABN noted in the contract is KC's.
In October 2007 the Tribunal found that the builder, 'whichever entity that properly is', was entitled to payment and ordered payment of the certified sum into the Domestic Builders' Fund. The parties have agreed that the right of the applicant in this case, KCA, to seek payment of that sum should be determined prior to the hearing of the respondent's counterclaim. Essentially this means I am asked to determine the identity of the builder- is it KCA or is it KC? Witness statements have been filed, with a further witness statement having been filed by Mr Krongold of the applicant as late as last Friday - the business day before this hearing was due to commence.
At the commencement of the hearing today Ms Porter of Counsel, appearing on behalf of the applicant, said that having reviewed the material, the applicant would not be seeking to rely on any evidence. The applicant would simply rely on the name of the contractor in the building contract - KCA - as being the relevant entity and thereby evidence of its entitlement to be paid the certified sum. I note in passing that this was not a conclusion the Tribunal was prepared to come to when the application for summary judgement was before it in October 2007.
The applicant submits that, in the absence of any ambiguity as to the identity of the contractor as noted on the contract, extrinsic evidence is not relevant or admissible.
Mr Whitten of Counsel appears on behalf of the respondents and submits that there is an ambiguity and uncertainty as to the identity of the contracting party and referred me to the three ABN's set out on the various copies of the Introduction Sheet - Contractor, a page of the contract. There is no provision for an ACN to be included but it does require an ABN. The applicant submits this is immaterial as the ABN is created and required for taxation purposes only - in particular the GST legislation.

WHAT IS THE RELATIONSHIP BETWEEN AN ACN/ARBN AND AN ABN?

When you register for an Australian business number (ABN), we will use your Australian Company Number (ACN) or Australian Registered Body Number (ARBN) to create your ABN. Your ABN is actually two check digits followed by the nine existing digits of your ACN or ARBN.

You can use your ABN in place of your ACN or ARBN provided:

your ABN includes your ACN or ARBN in the last nine digits
you quote your ABN in the same way as you quote your ACN or ARBN. For example, if you use your ACN and your legal name on your letterhead, you can use your ABN in place of your ACN (emphasis added).

I also note that other Government Instrumentalities allow for an ABN to be used in lieu of an ACN. For instance, the Registrar-General in NSW has directed:

Under the Corporations Act 2001 (Commonwealth) all Australian companies have a nine digit ACN issued by the Australian Securities and Investments Commission (ASIC). The ACN is used to ensure adequate identification of the company when transacting business.

A dealing or document drawn in the name of an Australian company, including building societies, credit unions and friendly societies, and except for those listed below, must state the ACN directly after the company name where it first appears on the dealing or document. The ACN is not required to be stated again after the first instance.

the 11 digit ABN is acceptable in lieu of the ACN for a company. Note: the ABN may appear in a company seal in lieu of the ACN providing the dealing or document was executed on or after 1.7.2003. ...(emphasis added)

In circumstances where this contract does not call for, and there is no space for an ACN, and considering the various copies of the Information Page bearing different ABN's I am satisfied that there is a degree of ambiguity and/or uncertainty as to the identity of the builder and that I should hear the extrinsic evidence.

New Tax System (Australian Business Number) Act 1999

Krongold Constructions (Australia) Pty Ltd v Worsfold (Domestic Building) [2008] VCAT 837 (5 May 2008)

Krongold Constructions (Australia) Pty Ltd v Worsfold

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (1)

Krongold Constructions (Australia) Pty Ltd v Worsfold (Domestic Building) [2008] VCAT 837 (5 May 2008)