SOUTHERN CROSS ELECTRICAL ENGINEERING LTD v STEVE MAGILL EARTHMOVING PTY LTD

摘要

The plaintiff (the contractor), subcontracted the first defendant (the subcontractor), to perform excavation and trenching works for the contractor. Relevantly, under the subcontract the subcontractor was to carry out trenching works calculated at a price per lineal metre and any variations were to be by written notice. The subcontract was a construction contract for the purposes of the Building and Construction Security of Payment Act 1999 (NSW) (the Act). The subcontractor served a payment claim on the contractor for over $470,000. The payment claim sought payment for trenching works with the measurements of lineal metres carried out by a surveyor. The contractor provided a payment schedule disputing the liability and claiming an amount in excess of $473,000 owing to it. The payment schedule disputed the number of lineal metres claimed and that the surveyor had overstated the actual lengths. The contractor also complained that the subcontractor had not complied with the subcontract clause requiring variations to be by written notice. The claim went to adjudication under the Act. The adjudicator determined that the contractor owed the subcontractor $400,158. The adjudicator accepted the subcontractor's argument that the parties had agreed to a process outside of the subcontract to vary the scope of work, and also preferred the measurements of the surveyor for the subcontractor to that undertaken for the contractor. The adjudicator stated: "Based on the information provided to me, the respondent has not convinced me that no variation was agreed or that the claimant has over claimed for the work ... ."