LUCAS STUART PTY LIMITED V COUNCIL OF THE CITY OF SYDNEY NSWSC 925
Supreme Court of New South Wales – 13 September 2005
Lucas Street Pty Ltd (“Lucas”) entered into a construction contract with the Council of the City of Sydney (“the Council”) for the reconstruction of the Customs House. Lucas served a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) in the sum of $3,952,474 for variations and alleged unpaid contract sum amounts. The Council failed to issue a Payment Schedule under section 14 of the Act within the 10 business days after service of the Payment Claim. Following the service of the Payment Claim, the due date for payment passed and Lucas did not receive any payment from the Council.
Lucas then sought summary judgment for the Payment Claim in the Supreme Court on the basis of section 15(2)(a) of the Act, which provides that “a claimant…may recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction…”
The Council, by way of defence, sought to contend that Lucas engaged in conduct that was misleading and deceptive concerning the service of the Payment Claim and, further, that Lucas should be estopped so as to prevent Lucas from relying on the documents provided forming the Payment Claim as Lucas had allegedly foreshadowed the provision of a number of contractual claims that awaited resolution, rather than a Payment Claim.
The Court found that notwithstanding the claims for estoppel and misleading and deceptive conduct, the proper analysis was that Lucas was entitled to summary judgment for the total amount claimed. The Council then sought to appeal that decision.
Whether the Council is able to appeal the matter.