ABIGROUP CONTRACTORS PTY LTD V RIVER STREET DEVELOPMENTS PTY LTD
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Supreme Court of Victoria – 10 November 2005
Abigroup Contractors Pty Ltd (“Abigroup”) entered into a construction contract with River St Developments Pty Ltd (“RSD”) under which Abigroup was to design and construct the Riviera Apartments at 69-73 River St, Richmond for the sum of $68,654,467. Abigroup faxed Progress Claim No 26 made under the Building and Construction Industry Security of Payment Act 2002 (VIC) (“the Act”) in the sum of $4,736,535.97 to the Quantity Surveyor, who was responsible for valuation under the Contract, and also faxed a copy to the Superintendent. The Quantity Surveyor responded by sending to Abigroup Payment Certificate No 26 which certified the amount of $154,185 as due for payment and showing how that amount was calculated.
Abigroup claimed that the Payment Schedule did not meet the requirements of section 15(3) of the Act that the payment schedule “indicate” RSD’s reasons for withholding payment, and commenced proceedings in the Supreme Court under sections 15(4) and 16(2)(a) of the Act to recover the amount of the $4,736,535.97 as a debt due to Abigroup.
Was Abigroup entitled to recover the amount of its payment claim as a debt due to it pursuant to section 16(2)(a) of the Act?