KO Commercial P/L v BLD Construct P/L

Citation:

Nature of case:

The Defendant obtained an order setting aside a default judgment in the sum of $62,044.08 that had been entered in favour of the Plaintiff for its failure to pay a progress payment, in an action that had been brought under s.15 of the Building and Construction Industry Security of Payment Act SA 2009 (“The Act”).

The Court found that judgment had been wrongfully entered by the Registrar as 21 days had not passed since the claim had purportedly been served on the Defendant, which was contrary to the requirements of MCR 60(4).

Further, after seeking guidance from the decisions of Interstate courts dealing with similar legislation, the Court accepted the Defendant’s submission that it was a pre-requisite to judgment being entered that the Court make an enquiry into the circumstances to determine whether the requirements of s.15(1) had been met, citing with approval the decisions of Brereton J in Majeed v Mahmud (2007) NSWSC 1413 and the NSW  Court of Appeal in Grave v Blazevic Holdings (2010) NSWC 324. To this end, a Court must be satisfied that the Plaintiff was entitled to a ‘progress payment’, that a valid ‘payment claim’ had been served in accordance with s.14 of the Act and that the Defendant had not provided a ‘payment schedule’ in accordance with s.14(4) of the Act.  On the facts, there was at least an arguable case that some, if not all, of the invoices referred to in the claim were not valid ‘payment claims’.

The Plaintiff did not oppose the setting aside of a second default judgment in the sum of $7,957 and was ordered to pay the Defendant’s costs of and incidental to its application to set aside both judgments on a party/party basis.

Counsel: Robert Fenwick Elliott appeared on behalf of the successful Defendant.

Counsel