THE MINISTER FOR COMMERCE (FORMERLY PUBLIC WORKS & SERVICES) V CONTRAX PLUMBING (NSW) PTY. LIMITED & ORS  NSWCA 142
Supreme Court of New South Wales – 6 May 2005
The Minister for Commerce (‘the Minister’) entered into a contract with Contrax Plumbing (NSW) Pty Limited (‘Contrax’) for certain works to be carried out by Contrax at Concord Repatriation General Hospital for $5,423,000.00. Contrax submitted a Payment Claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (‘the Act’) to the Minister seeking $2,622,645.00. The Minister issued a Payment Schedule under the Act, indicating a proposed payment of $NIL. The matter proceeded to Adjudication, Contrax asserting that it was entitled to the progress payment, notwithstanding the non-
fulfillment of certain conditions precedent to entitlement of payment because of section 34 of the Act rendered the applicable terms void. The Adjudicator determined that Contrax was entitled to $1,519,014.99, concluding that section 34 rendered void certain provisions of the Contract. The Minister filed a summons in the Supreme Court of NSW which was dismissed. The Court agreed with the Adjudicator and held that the provisions were rendered void by section 34 of the Act.
The Minister then appealed from those proceedings on the grounds that the primary judge erred in his construction and application of section 34. In particular, section 34 relevantly applied only if “the operation of the Act” is excluded, modified or restricted. Where the contract makes provision for the calculation of progress payments, the Act says that this is to have effect; so that effect is in accordance with the Act and not contrary to it. Contrax submitted that section 8 of the Act establishes an entitlement to progress payments as and from each reference date, and makes no distinction as to the type of construction work included in the original contract and construction work pursuant to a variation or Superintendent’s direction. The provisions of the Contract limited the effect of the Act, because they deprived the Contractor of a right to make a progress claim for such work and to obtain an interim determination in relation to such work.
What is the effect of section 34 of the Act?