BITANNIA PTY LTD & ANOR V PARKLINE CONSTRUCTIONS PTY LTD  NSWCA 238
Court of Appeal of New South Wales – 28 August 2006
Parkline Constructions Pty Ltd (“Parkline”) entered into a contract with a partnership between Bitannia Pty Ltd and Rossfield Nominees (ACT) Pty Ltd (“Bitannia”) for the construction of “The Ettalong Hotel”. Parkline had been, in accordance with the contract, submitting Payment Claims under the Building and Construction Industry Security of Payment Act 1999 (NSW)(“the Act”) to Bitannia’s architect, who had responded by providing Parkline with Payment Schedules.
The final claim by Parkline was sent to Mr Michael Brown, who administered the contract for Bitannia. The Payment Claim indicated that it had been copied to the architect. The claim had not in fact been sent to the architect, and as a consequence, Bitannia failed to respond with a Payment Schedule within the time allowed by section 14 of the Act. Parkline then proceeded to seek judgment in the District Court for the amount claimed pursuant to section 15 of the Act.
Bitannia sought to resist the claim on the basis that Parkline had engaged in misleading and deceptive conduct. The District Court held in favour of Parkline and awarded it the amount claimed.
Bitannia appealed the decision of the District Court to the Court of Appeal.
Does section 15(4)(b) of the Act prevent a Respondent from raising misleading or deceptive conduct under the Trade Practices Act 1974 (Cth) as a defence in proceedings for summary judgment brought under section 15(2)(a)(i) of the Act?