ALAN CONOLLY & CO V COMMERICAL INDEMNITY  NSWSC 339
Supreme Court of New South Wales – 29 April 2005
A R Conolly & Company (‘Alan’) engaged Commercial Indemnity (‘Commercial’) to carry out construction works, which were an office fit out, at Alan’s business premises. There was no written Contract and the works were carried out pursuant to an oral agreement between the parties, which did not make any provision for progress payments.
Commercial served by facsimile a Payment Claim consisting of three tax invoices totalling $78,456.40. The invoices were entitled “Variations to the scope of works – various”, “Variations to the scope of works – after hours labour” and “progress claim # 3” respectively, all of which carried the notation “Note: This is a payment claim made under the Building and Construction Industry Security of Payment Act 1999 NSW”.
Commercial issued a notice of its intention to apply for Adjudication under section 17(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) as Commercial did not provide a Payment Schedule within 10 days.
The matter proceeded to Adjudication and the Adjudicator considered the facsimiles to be regarded in their entirety as one Payment Claim.
Alan then sought to appeal the Adjudicator’s Determination on the grounds that (1) the second and third invoices were not Payment Claims under the Act as they breached section 13(5), which states that only one Payment Claim can be made in respect of each reference date; and (2) the Adjudicator’s decision to the contrary constituted a failure to comply with an essential requirement of the Act.
Are the three invoices, each of which complies with the requirements of the Act, served practically at the same time one Payment Claim or are they three Payment Claims?