7 The primary case for Parkview is that there was an "arrangement" within that definition.
8 The owner and developer of the land in question was a company known as Bruce James and Partners Pty Ltd (the developer). Fortia says that it was in effect an investor in the project and that from time to time it (and other financiers) paid amounts owing by the developer to Parkview.
9 Parkview's case is that it was engaged, in about April or May 2007, once the developer had got into a financial position that meant it was unable to continue with the development. In substance, Parkview says, it entered into an agreement or arrangement with Fortia whereby Fortia effectively took over the project from the developer, and Parkview carried out construction work, or supplied related goods and services, for the benefit of Fortia. That arrangement is said to have been evidenced in conversations and emails, and to be consistent with a pattern of dealings in which Parkview dealt only with representatives of Fortia, and negotiated for the relevant work with those representatives. Further, Parkview says, that arrangement is consistent with events that occurred later on, when progress claims were paid by Fortia.
10 The relationships between Parkview, Fortia and the developer were documented in two agreements. One is a "Construction Management Agreement" made on 29 May 2007 between the developer and Parkview. The other is a "Deed of Guarantee and Indemnity" made between Parkview and Fortia a fortnight or so later, on a date which does not, I think, appear on the face of the document.
11 According to the scheme established by those documents, Parkview agreed to provide construction management services to the developer, to enable the project to be completed; and the developer agreed to pay Parkview remuneration in accordance with the terms of the agreement. Separately, by the deed of guarantee and indemnity, Fortia guaranteed to Parkview all present future and contingent obligations of the developer to Parkview (clause 30) and agreed separately to indemnify Parkview against all losses and expenses that it might suffer in relation to the obligations of the developer.
12 Further, by clause 32, the obligations of Fortia were expressed to be "primary obligations". The meaning of that was expanded upon: the clause said that Parkview "is not obliged to proceed against or enforce any right against any other person or demand payment from any other person before making a demand for payment on" Fortia.
13 Parkview put in evidence a number of payment claims, or tax invoices, that it said were generated, for work done and services provided, after the agreements or arrangements to which I have referred were put in place. In terms, those documents were addressed to "the Superintendent". That was a Mr Craig Pearsall. Parkview says that he was an employee of Fortia. Fortia appears to accept that he was (or at least, has not said that he was not). However, Fortia says that Mr Pearsall was the superintendent appointed under the construction management agreement, and thus, for these purposes, a representative of the developer. Nonetheless, those documents were addressed to Mr Pearsall, care of the group of companies of which Fortia forms part, at the Sydney address of that group.
14 Fortia's case is that the only construction contract is the one evidenced by the construction management agreement, and that its only contract or arrangement with Parkview is that established by the deed of guarantee and indemnity. For Parkview to be entitled to summary judgment, it must show, as I have said, that this aspect of the defence is in effect hopeless, and should not be permitted to go to trial.
15 Parkview may very well be right in saying that, over and above the written agreements to which I have referred, there is some over-arching arrangement under which it agreed to do work for or provide services to Fortia, and under which Fortia agreed to pay for that work or those services. If Parkview does show this, then it may very well succeed in showing that there is an arrangement of the relevant kind. As to the width of the expression "arrangement": see the judgments of Nicholas J in Okaroo Pty Ltd v Vos Construction and Joinery Pty Ltd [2005] NSWSC 45 and Rein J in Olbourne v Excell Building Corp Pty Ltd [2009] NSWSC 349. Further, since this case arises under an Act of the State of Queensland, I note that the analysis of Nicholas J in Okaroo was followed by Douglas J in Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2007] QSC 286.
16 I accept that the approach to the concept of "arrangement" is as discussed by their Honours in the cases to which I have referred, and that in substance it is a wide term, capable of extending to transactions or relationships which are not enforceable at law. That construction is consistent both with the wording of the definition, in which contract or arrangement are opposed, and with the beneficial construction to be given to remedial legislation of this kind.
17 Nonetheless, it seems to me, when negotiations that of themselves might have given rise to an arrangement capable of being a construction contract are formalised in written agreements that do not of themselves amount to a construction contract (as between Parkview and Fortia), there is a triable question as to whether there is any continuing or supervening arrangement.
18 Thus, accepting for the purposes of this application the evidence on which Parkview relies (which includes the evidence of one of its directors, Mr Touma, to the effect that Parkview said that it would not have anything to do with the project unless satisfied that it could recover from Fortia if the developer were unable to pay) I do not think that the material shows that there is no issue to go to trial on the point of "construction contract".
19 The other issue which in my view should go to trial relates to the existence of a valid payment claim.
20 By s 19 of the Act, where a respondent becomes liable to pay the claimed amount because it has not served a payment schedule within the time allowed, the claimant may (as one alternative) commence proceedings to recover the unpaid portion of the claimed amount as a debt. By subs 4(a), the claimant is not to get judgment "unless the court is satisfied of the existence of the circumstances referred to in subsection (1)".
21 Subsection (1) requires that the respondent has become liable to pay because it has not served a payment schedule, and that in fact it has not paid the whole or some part of the claimed amount. In this case there is no doubt that the respondent has not paid all the claimed amount.
22 However, a respondent - in this case, Fortia - can only be liable for the debt if, being under an obligation to provide a payment schedule (or suffer the consequences) it did not do so. That then turns attention to the question of whether the document that was served on about 27 June 2008 is capable of being a payment claim for the purposes of the Act. The threshold test is a relatively undemanding one. It was considered (in the context of an appeal from a summary judgment application) in Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liquidation) (2005) 64 NSWLR 462.
23 The Court of Appeal was comprised by Hodgson, Santow and Ipp JJA. Their Honours gave separate reasons. It is a little difficult to find the common thread. However, I think, when one reads together what Hodgson JA said and what Ipp JA said, the relevant test emerges.
24 At 474 [34], Hodgson JA said that a document purporting to be a payment claim "does not fail to be a payment claim, within the meaning of the Act, merely because it can be seen, after a full investigation of all the facts and circumstances, not to successfully identify all the construction work for which payment is claimed".