Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd

CATCHWORDS : BUILDING AND CONSTRUCTION CONTRACTS - Adjudications under Building and Construction Industry Security of Payment Act - application for declaration that defendant builder is not entitled to adjudicated amounts and injunction restraining registration and enforcement of adjudication - whether agreement between plaintiff principal and defendant resulted in binding agreement whereby builder was not entitled to recover payment for certain additional works over and above an agreed sum, the value of which was included in adjudicated amount - if so, whether agreement was avoided by s 34 - whether subsequent agreement for settlement of proceedings 5158/08 on terms that an amount be paid into court pending outcome of proceedings precluded prosecution of a progress payment claim - if so, whether such agreement was avoided by s 34 - whether principal who suffers adverse adjudication can bring proceedings for declaratory and injunctive relief for restitution of sum paid pursuant to adjudication or to restrain enforcement of adjudication.

LEGISLATION CITED : (CTH) Trade Practices Act 1974, s 52 (NSW) Building and Construction Industry Security of Payments Act 1999 s 4, s 8, s 8(1), s 9(b), s 10(1)(a), s 11(1)(a), s 15(4)(b)(ii), s 22(2)(b), s 32, s 32(3)(b), s 34, s 34(2)

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, (2006) 67 NSWLR 9 Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor [2004] NSWCA 394, (2004) 61 NSWLR 421 CASES CITED : Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49, (2005) 62 NSWLR 385 John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798, (2006) 66 NSWLR 707 Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823

PARTIES : Roseville Bridge Marina Pty Ltd (plaintiff) Bellingham Marine Australia Pty Ltd (defendant)

COUNSEL : R T McKeand SC (plaintiff) M J Slattery QC w D T Miller (defendant)

SOLICITORS : Herbert Geer (plaintiff) DLA Phillips Fox (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1783/09 Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Limited JUDGMENT 1 HIS HONOUR: The plaintiff Roseville Bridge Marina Pty Limited seeks final declaratory and injunctive relief to restrain the defendant Bellingham Marine Australia Pty Limited from registering as a judgment or enforcing an adjudication certificate obtained by it from an adjudicator under the (NSW) Building and Construction Industry Security of Payments Act 1999 ("the Act") in respect of construction work performed by Bellingham for Roseville at Roseville Marina. Roseville does not impugn the adjudication process, nor allege that the adjudication is void, but contends that by reason of arrangements made between the parties, outside the adjudication process, Bellingham is not entitled to recover the adjudicated sum, or at least all of it. Background 2 On 31 July 2007, Bellingham as contractor and RBM as principal entered into a contract for the reconstruction of the Roseville Bridge Marina for a lump sum price of $976,550 plus GST. The contract contained no provision concerning the direction, performance or cost of variation works. 3 From 18 December 2007, Bellingham performed work under the contract. On 8 April 2008, NSW Maritime issued a stop work order, which prevented Bellingham from continuing the contract works. Central to the issues that now arise are communications that took place between Bellingham and Roseville in connection with the resumption of works. 4 On 27 June 2008 Roseville's principal Mr Tsigolis wrote to Bellingham's General Manager Mr Spragg, stating that Roseville had been prepared to pay half the balance owing when the stop work order was lifted and Bellingham resumed works on site, and confirming an offer now to pay $300,000 - said to be more than half the balance owing - upon recommencement. 5 Bellingham's solicitor, Mr Feehely, responded to Mr Tsigolis on 1 July 2008, stipulating that if Bellingham was to resume works, it required payment of $447,457.40 "for work completed by BMA under the contract", said to be outstanding in respect of works completed to that point, and provision of a bank guarantee for $69,707.50 "to secure to BMA the balance of the contract sum and your share of demolition costs". (The "demolition costs" related to works proposed to be undertaken by Bellingham which were outside the scope of the contract). Having pointed out that Bellingham "has incurred additional costs in attempting to expedite the completion of the project even though it has been frustrated in doing so by your failure to discharge your obligations to obtain the requisite permits and approvals …", and "has, therefore, been both very generous and very patient …", the letter made no mention of variations, but concluded (emphasis added): You will note that BMA is not claiming any additional costs or damages, to which it is clearly entitled, for the numerous breaches of contract committed by Roseville … . 6 By email on 9 July, Roseville's solicitor Mr Rivlin proposed to Mr Feehely that outstanding issues be resolved on terms that:

· Bellingham resume works under the Contract immediately;

· Roseville pay Bellingham "the outstanding amount of $441,424.50 immediately";

· Roseville provide a "bank undertaking" within 2 business days in the amount of $36,315.40 "in favour of [Bellingham] as security for payment by [Roseville] of the final progress claim to be submitted by [Bellingham] under the Contract"; and

· Bellingham not take steps to "enforce or make demand on the bank guarantee" without certain stated events occurring. 7 The email also made proposals in respect of the demolition works, which were described as being "outside the Contract". 8 On 14 July, Mr Feehely responded to Mr Rivlin, indicating acceptance of the proposal subject to two additional conditions, namely that: · If Roseville failed to deliver the said bank undertaking, Bellingham would be entitled to suspend the work until the security was delivered;

· Before Bellingham recommenced work, Roseville must provide evidence that the stop-work order issued on 8 April 2008 by NSW Maritime had been lifted. 9 The letter also separately addressed the demolition works, which had "never been part of the contract". 10 On the same day, by email to Mr Feehely, Mr Rivlin implicitly accepted Bellingham's counter-offer in relation to the Contract works, and indicated that instructions were being sought in relation to the demolition works. By a subsequent email on the same day, Mr Feehely confirmed that Bellingham would collect the payment of $441,424.50 and the bank guarantee for $36,315.40 the following day, and recommence work on 17 July. 11 Roseville duly paid the sum of $441,424.50 and provided the bank guarantee for $36,315.40, and Bellingham returned to the site and completed the contract works. The contract works were completed "on or about 12 August 2008" (according to paragraph 2 of Bellingham's Payment Claim). Bellingham provided a "Certificate of Installation" (Completion) on 12 August 2008. After 12 August, Bellingham invoiced the agreed amount of $36,315.40 as its "final claim for marina works as per contract". On 3 September, International Marina Consultants Pty Ltd issued a Certification of Executed Works. 12 On 13 October, Roseville filed a summons in this Division (proceedings 5158/08), claiming declarations (1) that on 11 October 2008 Bellingham repudiated the Contract and (2) that Bellingham was not entitled to demand payment on the bank guarantee, and an order restraining it from doing so. On 14 October, Bellingham called on the guarantee, and on 15 October the Court ordered that the proceedings be transferred to the District Court, and noted an agreement that the proceeds of the bank guarantee were to be paid into an interest bearing account in the joint names of the parties' solicitors pending the outcome of the proceedings. 13 On 8 December, Bellingham served a Payment Claim under the Act for $294,966.15. Bellingham's Payment Claim of 8 December 2008 included:

· Claims for "variations" totalling $153,048.69, including in respect of installation of a sewerage pump system, installation of 3 telescopic piles, and installation of pedestals, and the "demolition works" (in respect of which the amount claimed was, in error, the final payment amount of $36,315.40, but this was corrected in the adjudication); and

· A claim for the "final" payment under the contract (wrongly quantified as $33,014 instead of $36,315.40). 14 On 10 December, Roseville filed a Statement of Claim in the District Court proceedings, alleging some 100 defects said to require rectification by Bellingham, and also that the email exchange of 14 July constituted an "agreement whereby [Bellingham] would complete the works under the Agreement". On 22 December, Roseville served a Payment Schedule in response to the Payment Claim. 15 On 13 January, Bellingham served its Adjudication Application. The adjudication application continued the "variations" claim, as well as the "demolition works" and the "final payment" claims. Roseville served an Adjudication Response on 22 January. On 12 February 2009, the Adjudicator made a determination in favour of Bellingham for $146,717.95, of which:

· $36,315.40 was attributable to the "final payment";

· $21,296.00 was attributable to the demolition works; and

· $89,106.55 was attributable to other "variations". 16 Roseville does not now dispute that Bellingham is entitled to enforce the adjudication in respect of the amount allowed for demolition works. In the present proceedings, Roseville contends that Bellingham should be restrained from enforcing any consequential judgment to the extent that it is in respect of the "final payment" and the other "variations", by reason that:

· In respect of the variations, to do so was and would be in breach of an agreement constituted by the email exchange of 14 July 2008, said to be "an accord and satisfaction" "as to work to be performed by [Bellingham], and [Bellingham's] entitlement to payment, in relation to the Roseville Bridge Marina". (Alternatively, that if the email exchange did not have that effect, it ought to be rectified; alternatively, an estoppel arising from the email exchange, to substantially the same effect; and alternatively, misleading and deceptive conduct under Trade Practices Act, s 52);

· In respect of the "final payment", to do so was and would be in breach of the interim agreement reached in proceedings 5158/08, which provided for the proceeds of the bank guarantee to be paid into a jointly controlled account to abide the outcome of the dispute. 17 Bellingham contends that:

· Its entitlement to a progress payment in the light of the 14 July agreement was a matter for determination by the adjudicator. The adjudicator having resolved the issue in its favour, Bellingham was entitled to exercise its rights, albeit that they might be only of an interim character, to recover the adjudicated sum;

· To the extent that the 14 July agreement, or the 15 October agreement, prevented it from invoking its rights under the Act, they were void by operation of s 34 of the Act;

· Properly construed, the 14 July agreement (1) did not replace or release Bellingham's rights and obligations under the Contract - at its highest, it varied the contract by requiring Roseville to provide security for the final payment, and (2) did not extend to works outside the Contract - including the demolition works, the variation works, and future works that might be performed for the benefit of Roseville. The demolition works and the other variations were works outside the Contract but within the Act. (As to Roseville's alternative argument, the evidence did not establish a common or unilateral mistake such as to warrant rectification, particularly given that the "agreement" was wholly in writing arising from an exchange of emails; the estoppel case failed for substantially the same reasons as the agreement case - in particular that no relevant representation was conveyed, and also because there was no evidence of reliance; and the Trade Practices case failed, again because no relevant representation was conveyed). 18 The main issues may be stated and arranged as follows:

· Whether the exchange of emails on or about 14 July 2008 contained or conveyed a promise or representation on the part of Bellingham to the effect that it was a compromise of all claims in respect of work done or to be done under or in connection with the Contract, so as to preclude further claims - in particular in respect of additional works in the nature of variations - other than for the demolition works;

· If so, whether to the extent that it precluded a claim in respect of such variations, it was void by operation of s 34;

· Whether the 15 October Agreement precluded a claim under the Act for a progress payment for the construction work to which the "final payment" related, and if so whether it was to that extent void by operation of s 34; and

· Whether in any event Bellingham can or should be deprived of the benefit of the adjudication where there is no challenge to its validity. The effect of the 14 July email exchange 19 Roseville contends that the exchange of email correspondence between the parties' solicitors culminated in an "accord and satisfaction" whereby the remaining payments due and to become due under the contract (except in relation to demolition works) were negotiated and agreed, so as to exclude other claims. (Roseville accepts that no agreement was reached about the demolition works, and that Bellingham was entitled to make a payment claim under the Act, in that respect). Fundamental to this contention - and to Roseville's alternative rectification, estoppel and misrepresentation cases - is the proposition that the email exchange contained or conveyed a promise or representation on the part of Bellingham, and/or induced an assumption on the part of Roseville known to Bellingham, to the effect that it had no further claims in respect of work done or to be done under the construction contract (other than the demolition works). 20 As the Payment Claim reveals, all the additional works later claimed as "variations" had been performed prior to the July negotiations. The 1 July letter from Bellingham's solicitor to Roseville sought:

· Payment "for work completed … under the contract"; and

· A guarantee "to secure to Bellingham the balance of the contract sum and your share of demolition costs." 21 Thus it contemplated three categories of payment - payment for work completed under the Contract, security for the balance of the contract sum of $36,315.40, and security for a share of the costs of the demolition works. There was no alteration in that subject matter, nor in the amounts claimed, up to the time of agreement on 14 July. Having pointed out that Bellingham had incurred additional costs in attempting to expedite the completion, the letter also stated that "BMA is not claiming any additional costs or damages … for the numerous breaches of contract committed by [Roseville]". This is significant in respect of what were later claimed as "variations". The letter attached a reconciliation of the sums claimed, and the sum of $441,424.50 claimed for completed works corresponds with invoice no. 5309. That invoice included provision for variations, albeit minor ones; the total amount claimed includes those variations, and it remained unchanged throughout the ensuing negotiations and was ultimately agreed. 22 An email of 2 July, from Mr Feehely to Mr Rivlin, addressing the valuation of the work completed and yet to be completed, asserted: BMA has itemised the work to be completed and valued that incomplete work at about $70K. Therefore, the detail of the work completed is simply everything but the work itemised on the spreadsheet attached to me (sic) letter of yesterday. 23 The spreadsheet (reconciliation) also included the "balance of contract to bill" of $36,315, and the costs of the demolition works. This suggests that all work performed in respect of the Marina, including the demolition work, was the subject of negotiation. It would be astounding if Bellingham, intending to claim for the "variations" (other than the demolition work) had omitted them from this document. Their omission is entirely consistent with the statement that Bellingham was not claiming "additional costs". 24 An email of 3 July from Mr Rivlin to Mr Feehely stated that Roseville would pay "the full amount of $441,424.50 on account of invoice no. 5309 prior to the resumption of the works and pay the balance of the contract value on satisfactory completion of the works". In an email of 7 July to Mr Rivlin, Mr Feehely referred to the agreement to pay the $441,424.50 "for work done to date", while security for future work remained in dispute. Mr Feehely's email of 14 July, responding to Mr Rivlin's of 9 July, in the course of arguing that Bellingham would only bear half the costs of the demolition works, pointed out: BMA is now out of pocket to the extent of $80-$100K [exclusive of margin] in relation to goods and services it has delivered to RBM it was never obliged to deliver in the mistaken belief that would satisfy Mr Tsigolis and put a stop to the contrived disputes he continues to cause. These additional goods and services include the following: o Telescopic piles, …; o Sewer pump out. o Pedestal. 25 These were not connected with the demolition works. This email makes clear that Bellingham performed them in the hope of placating Mr Tsigolis, without obligation, and was "out of pocket" as a result. This is again consistent with and supportive of Bellingham's stated intention not to claim "additional costs". In none of the July correspondence is there a hint of a claim in respect of those goods and services. Had it intended to claim in respect of them, it could not have been said that Bellingham was "out of pocket" in that respect, especially in the context of the statement in the 1 July email that "BMA is not claiming any additional costs …". Yet they were later to be included in the payment claim and the adjudication application, as "variations". 26 Bellingham contends that, there being no provision in the works contract for variations, the additional works were not covered by the contract, and the 14 July agreement was limited to the contract works, so that there was no promise - implied let alone express - to make no claim in respect of them - each "variation" had to be the subject of a separate, self-contained agreement. However, this argument encounters significant obstacles. 27 The first is that variations - albeit of a minor nature - were included in payment claims up to the date of the email agreement, and the agreed sum included such variations up to that date. While the contract did not expressly provide a procedure for variations, progress claim 3 had included a charge for a variation, which was repeated in progress claim 4. The progress payment claim forms used by Bellingham provided for variations claims. Bellingham's case does not satisfactorily explain this away. It is inconsistent with a separate, self-contained contract being required for every additional work. 28 The second is that in the context of setting conditions for a return to work following its exclusion as a result of the stop work notice, Bellingham sought to stipulate for payment of the amount due for work already completed under the contract, for the outstanding balance of the contract price (which related to work yet to be completed), and for the demolition works (which on no view were under the contract) - yet not for the additional (variation) works. If it were contemplated that there would be additional charges for work already completed, but allegedly not under the contract (although they were later described even by Bellingham in its Payment Claim as variations), one would have expected to see reference to that claim in the negotiations. That is all the moreso when reference was made (in the 14 July email) to the telescopic piles, sewer pump out and pedestal, with no hint of a claim for payment for them; to the contrary, the inference was that there was to be no claim in respect of them. No other "variations" are mentioned in any of the correspondence. While Bellingham contends that the silence about variations reflected no more than that the parties were negotiating only in respect of work covered by the contract - and not variations - this is answered by the circumstances that a minor variation was included in the amount claimed for completed works, and that the negotiations addressed the demolition works, which were on any view not covered by the contract. None of Bellingham's communications identified the works later claimed as variations, as works for which payment was or would be due. The absence of any hint of additional claims for variations is to be contrasted with the fact that the negotiations specifically dealt with the separate contract for demolition of the existing marina. The agreement excluded demolition works, but nothing else. 29 The third is the express statement in the 1 July email to the effect that Bellingham was "not claiming any additional costs …". 30 The fourth is that when Bellingham invoiced the agreed amount of $36,315.40 as its "final claim for marina works as per contract", there was no reference to variations, nor any change to the amount that had been agreed. 31 Bellingham also contends that any such agreement would be objectively unreasonable and thus not lightly to be inferred, because while it would give Roseville certainty and finality, it would leave Bellingham open to defects claims (as has, in fact, transpired). But on reflection I do not perceive anything particularly unreasonable about that result. The contract was always a lump sum one, so that each party had some certainty as to the amount of its actual or potential liability or entitlement; yet Bellingham was always exposed to the potential for defects claims, the time for identifying which is upon practical completion, which would not occurred until well after the July agreement. The 14 July agreement did not significantly affect this position: it expedited the return to site and completion of the works; and it facilitated immediate payment of the past due sum. Bellingham obtained - in addition to immediate payment of the past due amount to which it was already entitled - the opportunity which it sought of returning to the site, completing the works and earning the balance of the contract sum, in preference to suing for damages, and the benefit of security for it; Roseville obtained Bellingham's return to site and completion of the works, and a release from any further claim in respect of completed works (save in respect of the demolition works). 32 Bellingham's silence during the negotiations about variations - other than the telescopic piles, sewer pump out and pedestal, with no hint of a claim for payment for them - indicates on an objective view that Bellingham was foregoing any further claim for variations completed to date, in the context of negotiations that encompassed all the works Bellingham had performed and those that remained outstanding. Objectively, the settlement agreement therefore included any claim for "variations" already completed, so as to resolve all Bellingham's claims for payment - other than in respect of the demolition works, which were specifically excluded. 33 The reasonable bystander to the negotiations in July 2008 were such that would have concluded that Bellingham was agreeing to accept immediate payment of the sum of $441,424.50 and a bank guarantee securing the balance contract sum of $36,315.40, and foregoing any claim for damages or additional costs, in respect of works completed, including "variations", and works outstanding under the contract, other than demolition works. (The agreement did not need to cover future "variations", which could be negotiated on a case by case basis if required - but this is irrelevant in practice because there were none, all the "variations" ultimately claimed having been completed prior to the July negotiations). 34 So far as the "final payment" component is concerned, while the 14 July Agreement provided for it to be secured by a bank guarantee, it did not affect Bellingham's entitlement to be paid on practical completion. In respect of the final payment under the contract, there is no reason why the agreement should be construed as excluding any right to make a progress claim under the Act in respect of it at the time when the Act authorised it. (Had it done so, it would have been void by reason of s 34 of the Act, discussed below). Likewise there is no reason why it should be construed (and Roseville does not suggest that it should be) as excluding any right to make a claim in respect of the demolition works; indeed Roseville accepts that Bellingham was entitled to make a claim under the Act in respect of the demolition works. 35 Accordingly, the 14 July email exchange resulted in a binding agreement whereby Bellingham was not entitled to recover payment for additional works - other than the demolition works - completed to date, over and above the agreed sum of $441,424.50. This included what became the "variations" component of its Payment Claim and the Adjudication. Bellingham was therefore not contractually entitled to the amounts allowed by the Adjudicator for variations, other than the demolition works, although it remained contractually entitled to the final payment, and payment for a share of the demolition works. 36 These conclusions render it unnecessary to consider the alternative rectification, estoppel and misrepresentation arguments advanced by Roseville. Is the 14 July email agreement void insofar as it precludes a payment claim? 37 Section 34 of the Act provides:

(1) The provisions of this Act have effect despite any provision to the contrary in any contract.

(2) A provision of any agreement (whether in writing or not): (a) under which the operation of this Act is, or is purported to be, excluded, modified or restricted (or that has the effect of excluding, modifying or restricting the operation of this Act), or (b) that may reasonably be construed as an attempt to deter a person from taking action under this Act, is void. 38 In Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 McDougall J held that where the effect of the construction contract was that the builder had no entitlement to be paid, on a progress payment basis or otherwise, for certain kinds of construction work done under or by reference to the contract, until a particular contractual regime was worked through, and to exclude any entitlement to be paid for variations that had not (or the value of which had not) been included in the Contract Price, the relevant contractual provisions excluded, modified or restricted the operation of the Act - because, if invoked, they deferred the entitlement given by s 8(1) of the Act to be paid from a reference date for construction work carried out prior to that reference date. His Honour said (italicised emphasis added):

35. Mr F C Corsaro SC, who appeared with Mr Justin Young of Counsel for Contrax, submitted that if the relevant contractual provisions had the effect for which the Minister contended, they did indeed breach s 34. He submitted that the Act created a statutory entitlement to a progress payment in respect of construction work and that a mechanism that displaced or delayed that entitlement was caught by s 34. At the very least, he submitted, the contractual scheme modified or restricted the operation of the Act and could properly be regarded as an attempt to deter a person from taking action under the Act.

36. In his submissions in reply, Mr Pembroke accepted that if the valuation of construction work were required, the adjudicator could value it by reference to the matters set out in paras (a) to (h) of cl 40.2 of the contract. However, he submitted, "the Adjudicator does not have the power to calculate the amount of a progress payment arising in respect of a construction contract by disregarding those terms that define and limit that entitlement ." (emphasis supplied)

39. The "amount" that is to be valued in accordance with s 9 is the amount of a progress payment to which a person is entitled in respect of a construction contract. The entitlement in question is that given by s 8(1). It is given to a person who has undertaken to carry out construction work and it is given on and from each reference date under the contract. It may be correct to say that the Act operates to supplement rather than to displace contractual entitlements. As Austin J put it in Jemzone v Trytan [2002] NSWSC 395 at [37], "the Act … generally leaves it to the construction contract to define the rights of the parties but makes "default provisions" to fill in the contractual gaps". However, as s 34 makes clear, the contractual regime cannot diminish rights given by the Act.

The right to a progress payment is, in substance, a right to a payment for construction work: "for" work done or undertaken to be done. See the decision of Barrett J in Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116 at [34]. That must be a reference to construction work done (or undertaken to be done) under, or by reference to, the contract.

The effect of the contractual regime in the present case is that Contrax has no entitlement to be paid, on a progress payment basis or otherwise, for certain kinds of construction work done under or by reference to the contract until a particular contractual regime is worked through. It is apparent that the working through of that contractual regime may mean that any progress payment in respect of that work is payable not from the reference date occurring next after the work is done, but from the reference date occurring next after the contractual process is worked through. If Contrax' submission is correct …, the latter reference date may be 200 days, or in excess of 6 months, after the former.

In my judgment, it is plain that the relevant contractual provisions exclude, modify or restrict the operation of the Act. They do so because, if relied upon, they defer the entitlement given by s 8(1) of the Act to be paid from a reference date for construction work carried out prior to that reference date .

Clause 42.1 gives an entitlement to progress payments, but specifies that payment claims in the aggregate must not exceed the Contract Price. Where, as here, the Contract Price (including agreed adjustments and adjustments determined in a binding way) has been exceeded, the contractual entitlement to a payment claim (ie, a progress payment) is exhausted. It follows, on the wording of the second (unnumbered and unlettered) para of cl 42.1, that the contract denies an entitlement to progress payments once the Contract Price as it stands from time to time has been paid. That, in itself, contravenes s 34, which imposes no such limitation. Under the contractual regime, once the Contract Price had been paid out, Contrax would not be entitled to a further progress payment until the Contract Price had been adjusted under the cl 46 regime, and then would be entitled only to a progress payment that did not exceed the amount of that adjustment .

Clause 42.1 is more than a valuation provision. It does not simply provide how the amount of a progress payment is to be calculated. In the sub paragraph to which I have referred, it stipulates a cap or limitation on the entitlement to a progress payment.

Clause 42.2 is also problematic. In the introductory sub paragraph, it specifies that a progress payment is to be an instalment of the Contract Price that reflects the value of the work carried out. It is clear that regardless of the value of the progress payment, it is to be limited to the appropriate fraction of the Contract Price. This is reinforced by the third unnumbered and unlettered sub paragraph, which specifies that in valuing work regard must not be had to the value of variations not included in the Contract Price. Although cl 42.2 on its face deals with the amount of progress payments - ie, with quantification or valuation - the effect of the third unnumbered and unlettered sub paragraph is to exclude an entitlement to be paid for variations that have not (or the value of which has not) been included in the Contract Price. In my judgment, that suffers from precisely the same defect as the relevant part of cl 42.1.

It follows, in my judgment, that the following provisions of cl 42 are void under s 34:

(1) In cl 42.1, the sentence "In aggregate, payment claims shall not exceed the Contract Price" in the second unnumbered and unlettered sub paragraph.

(2) In cl 42.2, the third unnumbered and unlettered sub paragraph, reading "In valuing work, regard shall not be had to the value of variations which value has not been included in the Contract Price". 39 The emphasised passages show that the agreement in question did not exclude or modify any entitlement to contractual remuneration simpliciter; its vice was that while the builder would remain entitled to remuneration - albeit after submitting to a contractual regime for ascertaining it - the right to a progress payment on account of it was deferred in a manner inconsistent with the Act. 40 In John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798, (2006) 66 NSWLR 707, McDougall J held that a contractual provision (clause 45) to the effect that where the builder wished to claim an amount over and above the Contract Amount (for example, for a variation, or for delay or disruption costs), it must as a precondition of such a claim give notice to the Principal - so as to in effect bar claims if the notice were not given - was not inconsistent with the rights given under the Act, and did not attract the operation of one or other of the alternatives set out in s 34(2). His Honour said:

82 As I have said, the ground of invalidity alleged by John Goss was that the requirement to notify a claim within 10 business days of the occurrence of the events giving rise to it was inconsistent with the right given by s 13(4) to bring a payment claim within 12 months after cessation of work under the contract. I do not accept that submission. Clause 45 says nothing about the time when a payment claim may be made. Its concern is to limit entitlement to work that might be comprised in a payment claim, whenever the payment claim is made. Provided notice is given in accordance with cl 45, the work that is the subject of the notice may be included in a payment claim made at any time, subject of course to the general provisions of the Act relating to progress claims and their contents. 41 In reaching that conclusion, his Honour referred to Minister for Commerce v Contrax Plumbing: 75 I considered the operation of s 34 in my judgment in Minister for Commerce v Contrax Plumbing [2004] NSWSC 823 at paras [31] and following. I concluded at para [43] that the relevant contractual provisions did fall foul of s 34 of the Act, because they deferred inordinately the statutory entitlement given by s 8(1) to be paid from a reference date for construction work carried out prior to that reference date.

76 An appeal from my decision was dismissed: Minister for Commerce v Contrax Plumbing (NSW) Pty Ltd [2005] NSWCA 142. I acknowledge that what I had said as to the operation of s 34 did not receive unqualified approval, although having regard to the view that the Court of Appeal took of the principal issue in that case, it was unnecessary for a final view to be expressed on the s 34 point.

77 Hodgson JA said at para [51] that it was "strongly arguable" that s 34 operated as I had said it did. He gave reasons for this in the following paragraphs. Bryson JA did not share in those observations. He said at para [58] that my "demonstration of the manner in which provisions of the contract excluded modified or restricted the operation of the Act, or otherwise fell within s 34(2), was not appropriately specific." Brownie AJA referred at para [61] to the differing, although tentative, views of Hodgson and Bryson JJA, and said that since the point was not necessary to resolve the question to decide the appeal, he would express no opinion.

78 Bryson JA observed at para [58] that "[t]he avoidance provisions should be applied according to their terms and no more widely." The Act seeks to strike some balance between competing considerations. On the one hand, there is the protection of the entitlement of those who perform construction work, or supply related goods or services, to receive progress payments. On the other, there is the freedom of parties to contract as they wish. I respectfully agree with what Bryson JA said, although I would add that, in interpreting the "avoidance provisions", it is necessary to pay due regard to the objects of and policy underlying the Act. But, that having been said, I do not think that anything in the Act generally, or in s 34 in particular, requires the Court to strain to find that a provision of a contract offends the Act.

79 Clause 45 in broad substance applies to claims for payment over and above what is called the "Contract Amount" - ie, the basic stipulated contractual remuneration "excluding any additions or deductions which may be required to be made" (see definition in cl 1). It is to be contrasted with the "Contract Sum", which is the contract amount increased or decreased by "any additions or deductions … which may be required to be made" (ibid).

80 Where John Goss wishes to claim an amount over and above the Contract Amount (for example, for a variation, or for delay or disruption costs), it is required, as a precondition of such a claim, to give notice under, and complying with the terms of, cl 45. It is obvious why a head contractor in Leighton's position might stipulate for such notice. Firstly, it will enable the claim to be investigated promptly (and, perhaps, before any work comprised in it is rebuilt, or built over). Secondly, it will enable Leighton to monitor its overall exposure to the subcontractor. Thirdly, it will enable Leighton to assess its own position vis a vis its principal. No doubt, there are other good reasons for stipulations of the kind found in cl 45.

81 It is correct to say that cl 45 operates to bar claims if the notice provisions in it are not followed. But it does not follow that cl 45 is thereby inconsistent with the rights given under the Act, so as to attract the operation of one or other of the alternatives set out in s 34(2). 42 Thus there was no inconsistency with the Act because all clause 45 did was to impose a procedural precondition to certain claims, without excluding or deferring the right to a progress payment. 43 The Act does not create a right to remuneration for construction work - that right is created by the construction contract. What the Act does is to create and regulate a right to obtain a progress payment. It is inherent in the concept of a progress payment that it be a payment on account of the amount ultimately due. The contract provides the starting point for the determination of rights under the Act [see, eg, s 9(b), s 10(1)(a), s 11(1)(a), s 22 (2)(b)]. The purpose of s 34 is to prohibit the exclusion or modification of the right to receive the contractual remuneration by progress payments; it does not prohibit the exclusion or modification of the contractual remuneration simpliciter. An agreement between the parties to a construction contract that some "extras" or "variations" will not entitle the builder to additional remuneration, or that a specified sum will be accepted for such works, forms part of the contractual regime according to which their rights under the Act as well as at law are regulated, and is not inconsistent with the rights given by the Act to claim a progress payment. 44 The 14 July Agreement is part of the contractual regime between the parties. It had the effect that $441,424.50 was the whole of the remuneration to which Bellingham was entitled for work done to date, and $36,315.40 was the whole of the remuneration to which it was entitled for the remaining works required by the construction contract. It did not exclude Bellingham's right to receive that contractual remuneration by progress payments in accordance with the Act. It was therefore not avoided by s 34. The 15 October Agreement 45 In respect of the "final payment" - which as a result of the 14 July email Agreement was secured by bank guarantee - Roseville contends that Bellingham was not entitled to propound and maintain the Payment Claim and subsequent proceedings under the Act, nor to enforce any consequent judgment, by reason of the interim agreement reached on 15 October 2008 in proceedings 5158/08, that the proceeds of the bank guarantee be paid into a jointly controlled account pending the final resolution of outcome of the District Court proceedings. 46 Proceedings 5158/08 were brought by Roseville to restrain Bellingham from calling on the guarantee, in circumstances that Bellingham's entitlement to payment of the guaranteed sum was in dispute. It was agreed that the dispute would be resolved in the District Court, to which the proceedings were transferred, and that in the meantime the proceeds of the guarantee be paid into an interest bearing account with St George Bank Limited, in the joint names of the parties' solicitors, pending resolution of the proceedings or further order of the Court. Roseville contends that it was contrary to this agreement for Bellingham to pursue the "final payment" in its Payment Claim, and thus to obtain an interim entitlement to an enforceable judgment for the amount, when it had been agreed that the sum would be held in the St George account pending final resolution. 47 That argument could be correct only if it were an implied term of the agreement that, pending final determination of the dispute, Bellingham would not exercise its rights to claim a progress payment under the Act. (By s 4 of the Act, progress payment includes the final payment for construction work carried out under a construction contract). Such a term might well have been implicit, but for s 34. However, such a term would plainly be a provision excluding or modifying the operation of the Act - because it would exclude the right to a progress payment in respect of contractual remuneration - and would therefore be avoided by s 34(2). 48 Roseville contends that the effect of the 15 October 2008 agreement was that the final payment was made by Roseville, with the payment being made into a trust account in the names of solicitors for both parties, for the benefit of Bellingham subject only to the resolution in the District Court of Roseville's claim for breaches of contract, and that once that payment was made into the trust account, there was no longer an entitlement to a "progress payment" pursuant to s 8. Roseville also contends that the agreement did no more than establish a precondition to payment, and to that extent it varies the written contract, but does not exclude or modify the operation of the Act, like clause 45 in John Goss Projects v Leighton Contractors and Anor, [66] to [83]. 49 I disagree. The substitution of payment of a "progress payment" into court, or equivalent, pending resolution of the dispute, modifies the operation of the Act, which gives the builder a right to receive the progress payment pending the final resolution of the dispute - not to have it secured or held in an account to which it does not have access. 50 Accordingly, Bellingham was entitled to proceed under the Act in respect of the "final payment", notwithstanding the terms on which proceedings 5158/08 were resolved, and to enforce its rights in that respect. Can or should relief be granted? 51 Bellingham contends that, in circumstances where Roseville does not seek to impugn the adjudication, it is entitled to the benefit of the consequential judgment and enforcement of it, albeit that such judgment is of interim effect only; and that Roseville's application in these proceedings seeks to "go behind the adjudication" in a manner inconsistent with the statutory scheme. The argument proceeds on the basis that it was for the adjudicator to determine the effect of the 14 July Email Agreement, that he did so determine in favour of Bellingham, and that consistently with the scheme and purpose of the legislation Bellingham should be entitled to the fruits of the adjudication. 52 Roseville does not dispute that, within the adjudication process, it was for the adjudicator to determine the contractual rights of the parties, and that he did so, adversely to Roseville, in a manner about which it does not or cannot complain in these proceedings. But it contends that that is irrelevant, and that quite apart from impugning the adjudication, it may invoke such statutory or equitable remedies as are available to restrain prosecution or enforcement of the adjudication - in particular, that it is entitled to have Bellingham's exercise of its statutory rights restrained where trade practices law or equity provides a remedy. 53 For this purpose, Roseville invokes the judgments of Hodgson and Basten JJA in the Court of Appeal in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238, (2006) 67 NSWLR 9. In my view, the reliance on Bitannia is misplaced: that case dealt with the rather different issue of whether, in proceedings for summary judgment under s 15 of the Act, a defence under the (CTH) Trade Practices Act 1974 could be relied upon, notwithstanding the terms of s 15(4)(b)(ii) - where a respondent had failed to serve a Payment Schedule in response to a Payment Claim by reason of misleading or deceptive conduct of the claimant. However, I am nonetheless satisfied that a principal who has suffered an adverse adjudication may in an appropriate case be entitled to an injunction restraining the builder from exercising its rights under the adjudication, not only where there is an arguable case for impugning the validity of the adjudication, but also where there is an arguable case that upon final determination (as distinct from the adjudicator's interim determination) the result will be different; a fortiori where an outcome contrary to that of the adjudication is reached on a final basis. 54 Section 32 of the Act provides:

(1) Subject to section 34, nothing in this Part affects any right that a party to a construction contract: (a) may have under the contract, or (b) may have under Part 2 in respect of the contract, or (c) may have apart from this Act in respect of anything done or omitted to be done under the contract.

(2) Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3).

(3) In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal: (a) must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and (b) may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings. 55 It is well established that there can be parallel proceedings under the Act and at law. Under the Act, the statutory rights are adjudicated only on an interim basis, and as such supplement the rights of the parties under the general law. Not only are consecutive proceedings under the Act and the general law permissible, but statutory proceedings need not be completed before curial proceedings are commenced, and a builder is entitled to pursue concurrently its statutory and common law remedies, subject to the limitation that the Act contemplates that a court will be free to undertake a final adjudication, so that a concurrent statutory claim may be vexatious and oppressive if commenced or carried on close to trial so that it will interfere with the curial proceedings [Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49, (2005) 62 NSWLR 385]. It was not suggested that that was the case here. 56 That an adjudicator can determine (for the purposes of the adjudication) the contractual rights of the parties does not mean that the adjudicator exclusively can do so; s 32 makes clear that a court's jurisdiction is unaffected, and plainly contemplates that the parties may resort to the Courts for the final determination of their rights under the construction contract, and that one of the remedies may be restitution of amounts paid as a result of an adjudication. In such proceedings, the Court gives effect to the legal and equitable rights of the parties to the construction contract, and the prior adjudication is of no moment - except that any progress payment must be brought to account, and restitution can be ordered of any amount which it is adjudged on a final basis ought not have been paid. 57 In Brodyn Pty Limited t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394, (2004) 61 NSWLR 421, Hodgson JA, with whom Mason P and Giles JA concurred, adverted to the availability of a stay or injunctive relief in respect of enforcement of a registered judgment arising from an adjudication where the adjudication could not be impugned but there was an offsetting claim:

84 It follows that the appeal should be dismissed with costs. However, this will not necessarily mean that Brodyn is without any remedy.

85 A court in which judgment for recovery of money has been given can stay execution of that judgment. A party against whom there was a substantial judgment could apply for a stay of execution on the grounds that it had a greater claim against the judgment creditor, for which it would shortly obtain judgment, and that, if the judgment money was paid, it would be irrecoverable; and the court could in its discretion grant a stay, on terms if it thought appropriate. I see no reason why a judgment under s 25 of the Act could not be stayed on that kind of basis, although the policy of the Act that progress payments be made would be a discretionary factor weighing against such relief.

86 In the present case, there could be discretionary factors in favour of a stay of execution in favour of Brodyn. Windeyer J, in his judgment of 23 August 2004, said that the execution of a deed of company arrangement had the effect of bringing into being a statutory set off of the claims between Brodyn and Dasein. We had no submissions about this, but conceivably that could be one basis for a stay of the District Court judgment. The circumstances that the adjudicator has, by force of the Act, disregarded a claim for damages for delay of over $116,000.00, and (apparently in error) has disregarded a claim of deficiencies and defects amounting to about $90,000.00, and also that money paid over may well be irrecoverable, could be further grounds for granting a stay. There is the further point that the adjudicator could not take into account Brodyn's objections to Dasein's claim for over $50,000.00 for items left on the site, because these objections were not raised in the payment schedule: s 20(2B) of the Act. In my opinion, the circumstance that significant objections of a respondent have not been taken into account because they were not raised in the payment schedule could not itself be a ground for resisting reliance on an adjudicator's determination or enforcement of a resulting judgment; but just possibly it could in this case add to the discretionary considerations in favour of Brodyn.

87 However, as noted above, the intention of the legislature that progress payments be made with a minimum of delay and court involvement, and the possibility that Dasein's financial difficulties have been caused by failure to make this progress payment, could militate strongly against the granting of such a stay.

88 It would of course be desirable if issues concerning possible staying of a s 25 judgment could be dealt with as part of case management of proceedings brought (as permitted by s 32 of the Act) to obtain a final resolution of the rights of the parties. This should be possible if the judgment is in the same court as those proceedings. If it is not, because for example the s 25 judgment is in the District Court and the s 32 proceedings are in the Supreme Court, then it may be that the Supreme Court could remove the judgment into the Supreme Court pursuant to s 145 of the District Court Act, or possibly grant a conditional "common injunction" against the judgment creditor restraining enforcement of the judgment. 58 Similarly, in Bitannia, Hodgson JA said: 5 Subject to what I say below about misleading conduct, it may be that in those circumstances the only remedy available is a remedy by way of stay or injunction, if the respondent can show a strong prima facie case to the effect that the result produced by the Act is unjust, that there is a substantial risk that money paid over would be irrecoverable, and that proceedings for a final resolution of the issues are being expeditiously pursued: see Brodyn Pty. Limited v. Davenport [2004] NSWCA 394, 61 NSWLR 421, at [84]-[88]. 59 Accordingly, a principal who has suffered an adverse adjudication and pays the adjudicated amount (whether or not the adjudication is registered as a judgment) may bring proceedings for restitution of the sum paid and re-agitate all the issues that were argued before the adjudicator. If the principal has a sufficiently arguable case and the discretionary considerations otherwise favour that course, enforcement of an adjudication registered as a judgment may be stayed or restrained on an interlocutory basis. Restitutionary remedies are available as a final remedy if payment has already been made, and preventative remedies such as injunctive relief are within the scope of "such other orders as [the Court] considers appropriate, having regard to its decision in those proceedings" if payment has not yet been made [see s 32(3)(b)]. It follows that if the principal succeeds on a final basis, enforcement of an adjudication registered as a judgment may be permanently stayed or restrained. 60 In the present proceedings, Roseville seeks a final determination of an issue that was argued before the adjudicator, namely, whether Bellingham was entitled to payment in respect of the "variations". The adjudication has not yet been registered, and the adjudicated amount has not yet been paid. In these proceedings, I have determined, on a final basis, that Bellingham is not entitled to remuneration over and above the agreed sum of $441,424.50 for the "variations", and thus is not entitled to the adjudicated amount insofar as it exceeds the amount of the demolition works and the final payment. Accordingly, as Roseville has established, on a final basis in this hearing, that it is not liable for the adjudicated amount in respect of the other variations, injunctive relief to restrain enforcement of the adjudication to that extent is prima facie appropriate. 61 I was for a time troubled that Roseville, rather than seeking an injunction to restrain the prosecution of the adjudication claim, chose to argue the issue in the adjudication, and failed. However, the scheme of s 32 is that Roseville is entitled to bring curial proceedings for the final determination of the issue, notwithstanding that it was argued before and determined (on an interim basis) by the adjudicator. If Roseville's decision not to seek an injunction at an earlier stage but to argue the issue before the adjudicator had any relevance, it may have been to the grant of interlocutory relief; but in the light of s 32 it cannot detract from Roseville's entitlement to restitutionary or injunctive relief on a final basis. Conclusion and relief 62 My conclusions may be summarised as follows: 63 The 14 July email exchange resulted in a binding agreement whereby Bellingham was not entitled to recover payment for additional works - other than the demolition works - completed to date, over and above the agreed sum of $441,424.50. This included what became the "variations" component of its Payment Claim and the Adjudication. Bellingham was therefore not contractually entitled to the amounts allowed by the Adjudicator for variations, other than the demolition works, although it remained contractually entitled to the final payment, and payment for a share of the demolition works. This conclusion renders it unnecessary to consider the alternative rectification, estoppel and misrepresentation arguments advanced by Roseville. 64 The purpose of s 34 is to prohibit the exclusion or modification of the right to receive the contractual remuneration by progress payments; it does not prohibit the exclusion or modification of the contractual remuneration simpliciter. An agreement between the parties to a construction contract that some "extras" or "variations" will not entitle the builder to additional remuneration, or that a specified sum will be accepted for such works, forms part of the contractual regime according to which their rights under the Act as well as at law are regulated, and is not inconsistent with the rights given by the Act to claim a progress payment. The 14 July Agreement is part of the contractual regime between the parties. It had the effect that $441,424.50 was the whole of the remuneration to which Bellingham was entitled for work done to date, and $36,315.40 was the whole of the remuneration to which it was entitled for the remaining works required by the construction contract. It did not exclude Bellingham's right to receive that contractual remuneration by progress payments in accordance with Act, and it was therefore not avoided by s 34. 65 The argument that it was contrary to the 15 October agreement for Bellingham to pursue the "final payment" in its Payment Claim, and thus to obtain an interim entitlement to an enforceable judgment for the amount, when it had been agreed that the sum would be held in the St George account pending final resolution, could only be correct if it were an implied term of the agreement that pending final determination of the dispute, Bellingham would not exercise its rights to claim a progress payment under the Act. Such a term might well have been implicit, but for s 34. However, such a term would plainly be a provision excluding or modifying the operation of the Act, and would be avoided by s 34(2). Accordingly, Bellingham was entitled to proceed under the Act in respect of the "final payment", notwithstanding the terms on which proceedings 5158/08 were resolved. 66 A principal who has suffered an adverse adjudication and pays the adjudicated amount (whether or not the adjudication is registered as a judgment) may bring proceedings for restitution of the sum paid and re-agitate all the issues that were argued before the adjudicator. If the principal has a sufficiently arguable case and the discretionary considerations otherwise favour that course, enforcement of an adjudication registered as a judgment may be stayed or restrained on an interlocutory basis. If the principal succeeds on a final basis, enforcement of an adjudication registered as a judgment may be permanently stayed or restrained. 67 Accordingly, as Roseville has established, on a final basis in this hearing, that it is not liable for the adjudicated amount in respect of the variations other than the demolition works, injunctive relief to restrain enforcement of the adjudication to that extent is prima facie appropriate. As Bellingham's present entitlement to so much of the adjudicated amount as comprises the costs of the demolition works is not disputed, and as I have concluded that neither the 14 July Email Agreement nor the 15 October Agreement affects Bellingham's entitlement to the final payment, the preferable course is to restrain Bellingham from enforcing the judgment it will obtain upon registration of the adjudication insofar as it exceeds the amount of the demolition works and the final payment. 68 Subject to any submissions that may be made as to their form, or as to costs, my orders are: (1) Declare that pursuant to a binding an enforceable agreement made between the plaintiff and the defendant by exchange of emails on or about 14 July 2008, the defendant is not entitled to recover payment for work completed under the construction contract dated 31 July 2007, or additional work or variations in connection therewith (other than demolition works) completed prior to 14 July 2008, including the work described as "variations" (other than demolition works) in its Payment Claim dated 8 December 2008 and the Adjudication dated 12 February 2009, over and above the agreed sum of $441,424.50.

(2) Order that the defendant be permanently restrained from issuing execution or a creditor's statutory demand or otherwise enforcing any judgment that it might obtain upon registration of the Adjudicator's Determination of 11 February 2009, to the extent that such judgment exceeds principal of $57,611.40 and interest thereon.

(3) Order that the defendant pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.