New Year

I am back in chambers following the New Year break.

The clerks’ room will be quiet for another week – call me on my mobile (0415 668 665) if you have any difficulty getting through.

It will be interesting to see if there are any Christmas ambushes this year under the Building and Construction Industry Security of Payments Act 2009 (SA).  It is notable how on the East Coast many payment claims are made just before Christmas – the 15 day period for providing a payment schedule (as it is in SA – 10 days elsewhere) runs only “business days” ie

any day other than—

            (a)         a Saturday, Sunday or public holiday; or

            (b)         27, 28, 29, 30 or 31 December; or

            (c)         any other day on which there is a Statewide shut-down of the operations of the building and construction industry;

but time still runs even though many people will be on the beach in the first half of January.

In Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003]  NSWSC 266 the payment claim was served on a 20th December. As a result of its failure to serve a payment schedule, the respondent had a judgment for $13,962,904.00 entered against it. This was notwithstanding that the architect had issued a certificate for the amount he had assessed – $952k – in accordance with the contract. The case is a vivid reminder of how draconian this legislation can be if its very rigid timescales are missed.

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