the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.
20 Under s 4 construction contract is defined to mean:
a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party.
21 By Summons sued out of this Court on 19 February 2010 the plaintiffs claim a declaration that they are not parties to a construction contract with the defendant within the meaning of the Act, a declaration that the claim dated 31 January 2010 is not a payment claim within the meaning of that expression under the Act and an order that the defendant be restrained from taking any steps to recover the unpaid portion of the scheduled amount noted in the plaintiffs' payment schedule dated 15 February 2010 or from making any adjudication application as permitted under the Act.
22 The defendant has sued out a cross-summons for judgment in the amount of $240,988.93.
23 The issues which have arisen for determination in these proceedings are as follows:
a firstly, who is the party to the contract with it for the works? The defendant says the first plaintiff. The first plaintiff says that it is not party but that Olympia NSW is;
b secondly, when was the payment claim ("the claim") of 31 January 2010 received? The first plaintiff says, and the defendant disputes, that the payment was only received on 2 February;
c thirdly, even if the claim was received on 31 January 2010 by facsimile was that effective service on the first plaintiff? The plaintiffs say that service was not effective because the address to which it was sent was not a facsimile addressed to the first plaintiff's ordinary place of business because the first plaintiff did not carry on business and therefore did not have an ordinary place of business at which service could have been effected. The plaintiffs also put that the claim was directed indivisibly to both plaintiffs, together they are one person on whom a payment claim may be served under s 14(1) of the Act and that service under the Act of the claim only took place when it occurred on both, that is when it came to the attention of Mr Davidson, (which it is not disputed occurred on 2 February 2010);
d fourthly, is the claim an abuse of the processes of the Act because it repeats, at least in part, monies which had been claimed under earlier claims by the defendant?
24 I shall deal firstly with the questions relating to service.
25 Mr Lombardo's evidence that he sent the claim by facsimile on 31 January 2010 was not directly challenged other than it being put to him that the facsimile was sent at another time. The plaintiffs' evidence that there was not physical receipt of a printed out document until 2 February 2010 was, by the same token, not directly challenged by the defendant.
26 Reference was made to the judgment of McDougall J in Zebicon Pty Ltd v Remo Constructions Pty Ltd [2008] NSWSC 1408 in which his Honour held that receipt into the memory of a fax machine constituted receipt under the Act of a claim by the respondent. Mr Lombardo produced a facsimile confirmation document indicating that the facsimile had been transmitted as he says.
27 There are some anomalies about the material which the defendant has produced. The original facsimile transmission report has not been found. The document (which is the only document according to the first plaintiff's evidence which was received) has a header which is anomalous. The date on it is some 4 years prior to 31 January 2010.
28 Nevertheless, in all of these circumstances I accept that the facsimile was sent as Mr Lombardo says, although I equally accept that the physical emanation of it was not received by the first plaintiff until 2 February 2010. It follows that the first plaintiff's submission that it did not receive the claim on 31 January 2010 is rejected.
29 Once the claim had been received, the first plaintiff, responding undoubtedly to the form of the claim which had been made, responded by its payment schedule of 15 February 2010. The document was signed by Mr Davidson "on behalf of Olympia Group Pty Ltd and Viv Davidson". The letterhead is that of Olympia Group Pty Limited. The heading on the letter is "Olympia Group". The irresistible inference is that certainly as at 15 February 2010 the ordinary place of business of both the first plaintiff and Mr Davidson was at the address with the facsimile numbers contained on the letterhead to which the claim was sent.
30 It was put that the first plaintiff had no ordinary place of business because it was not in business. I consider that it was at least in the business of resisting the claim which was being made against it, and the same can be said of Mr Davidson.
31 I reject the submission that service did not take place on 31 January 2010 because the facsimile was received at a place which was not the recipients' ordinary place of business. That finding makes it unnecessary to deal with the contention of the plaintiffs that the claim was made against two persons indivisibly and was only received when the second of those persons received it, namely by Mr Davidson physically, on 2 February 2010.
32 So far as abuse of process point is concerned, I propose to follow what was said by the Court of Appeal in Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259. In the judgment of Hodgson JA at par 36 his Honour held that the Act permits successive payment claims to be made for the same work. This disposes of the first plaintiff's submission.
33 There is authority, (see eg Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69), that an abuse of process occurs when repeated claims are made where the first claim has gone to adjudication. That is not this case.
34 I turn then finally to the question of the contracting party. Mr Christie of senior counsel, with whom Mr Shipway appeared, on behalf of the defendant put that Mr Davidson had accepted that documents addressed to "Olympia Group" were received by the first plaintiff and that where "Olympia Group" was used in at least one email by him, that was a reference to the first plaintiff. Reference was made to the fact that there is no document emanating from the first plaintiff's side which discloses that Olympia NSW was the contracting party.
35 Reliance was placed on a document dated 13 June 2009 annexed to the affidavit of Mr Alessandro Lombardo, who from time to time assisted the defendant in office administration duties, which is a quotation, on its face, from the defendant to Mr Davidson as the first plaintiff. Mr Lombardo says that this document was handed to him by Mr Carzo on Saturday 13 June 2009 and that he posted it to the PO box address on it, (which is the PO box address of the first plaintiff), placed it in an envelope and placed a stamp on the envelope and posted it on Monday, 15 June 2009 in a post box on the street outside 85 Bourke Street, Alexandria, New South Wales. The first plaintiff denies receipt of the letter.
36 There was no significant challenge either to the evidence of Mr Alessandro Lombardo or to the evidence of Mr Davidson and, to the extent relevant, Mr Fuller, who also works for Olympia NSW, that the document was not received. Anomalously, the only computer copy of this document presently in the defendant's existence has the watermark "draft" across it for which Mr Carzo could offer no explanation.
37 I am not satisfied that this document was received by the first plaintiff.
38 Mr Kalyk of counsel for the first plaintiff put that the following features objectively supported the conclusion that the contract was not with the first plaintiff but rather with Olympia NSW:
a prior to contract, whoever the contracting party, there was no dispute that there was an earlier contract between the defendant and Olympia NSW relating to works at Balmoral Naval Hospital;
b Olympia NSW was the contracting party under the head contract;
c the payments made to the defendant were by Olympia NSW;
d the invoice in August 2009 was sent by Olympia NSW.
39 There was also no challenge to the evidence of Mr Davidson that the first plaintiff does not carry on business (apart from the limited extent to which I have earlier referred to).
40 I am satisfied the contract here was between the defendant and Olympia NSW. Whilst it is true that there are no documents which indicate in writing from the plaintiffs' side of the record that Olympia NSW was at the time of the contract the contracting party, by the same token, there are no such documents indicating that the first plaintiff was. I consider the following as to be compelling considerations in favour of my conclusion that:
a Olympia NSW was the head contractor,
b Olympia NSW paid for the work;
c the unchallenged evidence that the first plaintiff was not carrying on business in the building and construction industry at the time.
41 In circumstances I will make a declaration in terms of par 1 of the Summons and I will make an order in terms of par 3. It follows that the defendant's cross-summons must be dismissed. The defendant is to pay the plaintiffs' costs of the proceedings.