BARCLAY MOWLEM CONSTRUCTION LTD V TESROL WALSH BAY PTY LTD [2004]
NSWSC 716
Supreme Court of New South Wales – 13 August 2004
FACTS
Barclay Mowlem Construction Ltd (‘Barclay’) undertook building work for Tesrol Walsh Bay Pty Ltd (‘Tesrol’). Barclay Mowlem served a Payment Claim pursuant to section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) on Tesrol for $1,111,923.
Tesrol provided Barclay with a document, purporting to constitute a Payment Schedule, within the time permitted by section 14(4) of the Act. The document referred to “ongoing communications” and stated that “it is apparent that the Parties are in Dispute” and that “it is considered appropriate that we refer the matter to the Independent Certifier… for an assessment and determination of the matters detailed below”. The document did not indicate in terms any amount that Tesrol proposed to pay; nor did it say in terms that Tesrol proposed to pay nothing.
Barclay contended that Tesrol did not provide it with a Payment Schedule in accordance with section 14 of the Act. That is, the document was not a Payment Schedule because it did not indicate the amount of payment (if any) Tesrol proposed to make. Accordingly, Barclay said that Tesrol was liable to pay the amount claimed and then sued to recover the amount as a debt. Tesrol argued that it did, within the time permitted by section 14 of the Act, provide Barclay with a Payment Schedule for the purposes of section 14.
ISSUE
Whether a Respondent to a Payment Claim is required to expressly state that they propose to pay nothing.
FINDING
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