VICVCAT
Krongold Constructions (Australia) Pty Ltd v Worsfold
[2008] VCAT 837
Victorian Civil and Administrative Tribunal|2008-05-05
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Source factsCourt
Victorian Civil and Administrative Tribunal
Decision date
2008-05-05
Source
Original judgment source is linked above.
Judgment (10 paragraphs)
[1]
- 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.