Court Of Appeal Blows Hole In Security Of Payment Act
The New South Wales Court of Appeal has ‘blown apart’ one of the key features of the Building and Construction Industry Security of Payment Act 1999 (SOP Act). A payment claim could be defeated at any time by a claim of misleading and deceptive conduct.
In the case of Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238 the Supreme Court found that even though no payment schedule had been issued and the SOP Act specifically barred a defence after the time for putting in a payment schedule had expired, that if a payment claim involves misleading and deceptive conduct it can be defeated.
Background
Parkline Constructions Pty Ltd (builder) was appointed by Bitannia Pty Ltd and Rossfield Nominees Pty Ltd (owners) to build the Ettalong Hotel. The architect was nominated by the owners to act as their agents to administer the building contract. The building contract required the builder to make claims for progress
