Drake Constructions Vic Pty Ltd v Three Construct Group Pty Ltd [2023] VCC 1325

Nikki Miller   |  Isobel Carmody  |  Sean Bricknell

Key takeout

A construction contract that stipulates payment is to be made ‘weekly in arrears’ could provide a reference date for the purposes of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP  Act) every seven days. 

Facts

The defendant (TCG) engaged the plaintiff (Drake) to provide carpentry labour services at three sites under three separate labour services agreements.  Those labour services agreements each provided that payment was to be made ‘weekly in arrears’.

Drake served a number of payment claims on TCG for carpentry services provided at each of the sites.  TCG failed to serve a payment schedule in response to any of the payment claims or make any payments to Drake. Due to TCG’s failures to issue payment schedules in response to the payment claims or pay the amounts claimed in those payment claims, Drake applied to the County Court of Victoria for judgment on those payment claims pursuant to s 16(2)(a)(i) of the SOP Act. 

TCG did not file a Notice of Appearance and, accordingly, the application for judgment proceeded undefended.

Decision

The court awarded judgment on each of the payment claims, because each of the requirements of the SOP Act for judgment to be awarded had been satisfied.

Each of the labour services agreements were ‘construction contracts’ within the meaning of the SOP Act because the carpentry labour services provided by Drake were ‘related goods and services’ within the meaning of the SOP Act.

Each of the payment claims met the requirements of s 14 of the SOP Act, namely the payment claims:

•   were issued on TCG, who was obliged to pay Drake;

•   indicated the amount for construction work (or, related goods and services) due;

•   identified adequately the works to which the claims related;

•   stated that they were made under the Act;

•  had a valid reference date (noting that the stipulation in each agreement that payment was to be made ‘weekly in arrears’ meant that a reference date accrued every seven days);

• did not include excluded amounts;
  
  
• were validly served on TCG in accordance with the terms of the labour service agreements; and
  
  
• were submitted within three months of the relevant reference dates arising.
  

TCG had also failed to submit payment schedules within the contractual or statutory time limits.