Facade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2021] HCATrans 169 (15 October 2021)

Last Updated: 20 October 2021

[2021] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2021

B e t w e e n -

FAÇADE DESIGNS INTERNATIONAL PTY LTD ACN 099 706 859

Applicant

and

YUANDA VIC PTY LTD ACN 166 473 089

Respondent

Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 2.27 PM

Copyright in the High Court of Australia

KEANE J: In accordance with the Court’s protocol in sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR M.G. ROBERTS, QC for the applicant. (instructed by Piper Alderman)

MR R.J. FENWICK ELLIOTT appears with MS L.E. MILLS for the respondent. (instructed by Fusion Legal)

KEANE J: Yes, Mr Walker.

MR WALKER: May it please your Honours. The setting in which this application is brought includes the factors that we have drawn to attention in paragraph 38 of our application, at page 219 of the book. In short, a claim for statutory interest, as we put it, commercially motivated by a pattern of late or non‑payment of just over $64,000, by its inclusion in the initial form of a claim under the statute otherwise totalling over $3.3 million, has meant that the whole of that amount is unavailable.

When I say unavailable, I mean unavailable under the statutory scheme in question – the importance of which commercially can hardly be understated – of “paying now, disputing later” for the evidently important purpose of contributing to an appropriate degree of cash flow in a very important industry – the construction industry – in a very important place – Victoria.

Your Honours, as you are well familiar, the statutory scheme has as some cardinal points the following matters to which I would refer at the onset. In Victoria, by reason of section 47 of the Act upon which I need not dwell, all of the security of payments procedures are, so to speak, provisional and can be revisited, including financially, in later fully contested litigation or arbitration and, thus, the whole setting of the procedures in question here is a setting which is designed to include the rapid and expeditious processing of progress claims, as they are called.

Your Honours have in the extracts from the Act, at page 221, section 3 as to the objects – and you have seen that we draw to attention that which, in our submission, is not served by the approach of the majority in the Court of Appeal, but is served by the dissenting reasons of Justice Sifris and the first instance reasons, namely, under section 3(1) the assuring of an entitlement to receive and ability to recover so‑called “progress payments”.

Your Honours then see, in a form which has not changed since the original enactment of the legislation, in subsection (3) what are called “means” by which the Act is to ensure those outcomes. You will see that there is a.....that operates as if by a sequence, but the sequence includes the provision of a payment schedule by somebody who is perhaps hopefully called the “person by whom the payment is payable”.

That is, as your Honours are aware, a step in the elucidation and probably narrowing of issues for this provisional “pay now, argue later” scheme by which objections, rendered operable by the statutory scheme, can be notified between the parties.

That is what the respondent did not do and, as your Honours have seen in our argument, one of the purposive elements of what we urge in favour of the dissenting reasons in the Court of Appeal and the first instance reasons, as compared with the majority reasons in the Court of Appeal, is that there is what we would respectfully submit a somewhat perverse advantage given to a party that does not participate in the generally envisaged procedure that you see in section 3(3) of the Act.

GORDON J: Can I ask about that, Mr Walker? Does not section 16 address that fact, though ‑ ‑ ‑

MR WALKER: It does.

GORDON J: Because you are given two options, (a) and (b), or (a)(i) or (a)(ii)?

MR WALKER: Quite so. The options, first of all, refer to the recovery of a debt in a court of what is called the unpaid portion of the claimed amount and, as your Honours know, that is relied upon by us to entrench upon the notion that the claimed amount cannot be diminished by any events, including subsequent appreciation of the true position by the parties, including the party seeking enforcement of the debt. An acceptance the payment has been made, for example, can produce a concession that it has been paid and a reduction of an amount with no difficulty whatever for the exercise of the judicial power to enable the receipt and recovery of the unpaid portion.

The question in this case is whether or not the initial inclusion of what, on its face, was an excluded amount, to use the statutory expression, and which is conceded by the parties seeking judgment to be an excluded amount works an entirely opposite outcome, namely, that there is, though there was no response by the respondent to the claim, an inability to obtain even a single dollar of the progress payment claim.

GORDON J: Can I ask two other questions and then I will be quiet. One is, putting aside insolvency issues and the potential contractual issues, why could your client not serve another claim?

MR WALKER: Your Honour means another progress claim?

GORDON J: Yes - or, I add my second aspect to it, why could they not refer it to adjudication under 16(2)(a)(ii)?

MR WALKER: I cannot say that I have ever become aware of an argument in this case, nor of authority about what I will call an irrevocable election point, so we can put that to one side. The contract has been, as your Honours know, terminated by reason of the dispute between the parties, and so the lodging of an adjudication for a progress payment, I think, is problematic. There cannot be a reference date once the contract has been terminated. I hope that is an answer to your Honour Justice Gordon’s question.

GORDON J: I think so, Mr Walker.

EDELMAN J: That may be an answer to the second question, but the first question as to why a fresh progress claim cannot be filed is not clear to me.

MR WALKER: Well, the contract having been terminated, with respect, there cannot now be a reference date to permit a new claim, a fresh claim. That is as I understand the position.

GORDON J: So, the position there is that you bring an action for damages?

MR WALKER: Yes.

GORDON J: I see.

MR WALKER: In other words, the whole of the scheme, “pay now, dispute later”, is rendered nugatory and one is left to, if I may call it, the jungle that this statute was intended to spare people.

KEANE J: But, Mr Walker, does not the Act recognise or establish two streams? There is the possible judgment stream and then there is the adjudication stream.

MR WALKER: Yes.

KEANE J: And where you have claims of a particular kind, they are intended to go into the adjudication stream, and claims that do not include those kinds of claims may be appropriate to the judgment stream, and never the twain shall meet.

MR WALKER: No, that is not how we would understand either the majority has reasoned it, or the statute should be interpreted. A claim which has an original iteration is a process which can be affected, either in court proceedings or in adjudication procedures, by way, in particular, of reduction. That which appears to be common ground is that ex facie errors of an arithmetic kind, for example, or double‑counting, for example, are not errors which would prevent a proper amount being adjudicated by a judgment in debt in court or adjudicated by the arbitrator out of court.

If that be so, the question arises as to what is the difference with respect to excluded amounts and, in our submission, there is nothing in the statute, section 16 in particular, that says there is, in advance of an ex facie determination by a court, a distinction between the claims that are able to be made in court and the claims that are able to be made only before an adjudicator.

It appears, from the wording of the opening words of section 16(2) that a choice is provided in circumstances described in subsection (1), none of which embraces in terms a question of characterisation of an amount as excluded, or not, or including an amount excluded or not. That, of course, drives one back to what appears to have been one of the main differences between the reasons and the Court of Appeal, the role that the reference to section 14 in section 4’s definition of “claimed amount” ought to be understood to have worked, as we would put it, purposively.

Now, the reference to section 14 in section 4’s definition of “claimed amount” picks up, of course, subsection (3)’s prohibition of an inclusion in a claimed amount of any excluded amount, not words which lend themselves obviously to making a claimed amount that does wrongly include an excluded amount not a claimed amount, but rather, one that has wrongly included an excluded amount. To put it another way, bearing in mind that the court, under the option of going to court under section 16(4)(a)(ii) must be satisfied:

that the claimed amount does not include any excluded amount –

and that is to be done by the ex facie examination upon which we think the parties agree as common ground. The scheme seems fairly straightforward, that the judgment for the claimed amount must not include any excluded amount and, therefore, being the judgment of a court, will be for an amount that does not include an excluded amount.

There seems to be some notion, not articulated expressly in the majority, that there is a fatal flaw, completely incapable of any cure, including by full concession, and including by reference to matters evident on the face of the claim as resistors, if there is once – for once, at the outset, included an excluded amount in the claim.

This is not a scheme, statutorily, that appears to award what might be called the formal formalities of pure paperwork, that is, the need to scrap all procedures in order to fix, for example, either an arithmetic error or the frank excess of seeking statutory interest where that is an excluded amount, as was this case.

So, my answer to Justice Keane is these are not provisions which, as it were, are for selection of a case that involves no possibility of an excluded amount, that is, off to court, and a case which may or may not involve such a possibility, it goes off to an adjudicator.

It is to be recalled, that under section 15, which is anterior in the scheme to section 16’s steps and choices, there is the opportunity, I stress, opportunity, granted by the words “may reply” in subsection (1), to a person in the position of the present respondent, and that payment schedule will identify, among other things, reasons for withholding payment.

That, obviously enough, picks up, what, under paragraph (c) of subsection (2), would be a reason within the meaning of subsection (3), namely, to identify that which is alleged to be an excluded amount. All of that is common to cases which may go to court, as cases that may go to an adjudicator, apparently, on the face of the text of section 16, by the choice of the claimant and it is for those reasons ‑ ‑ ‑

EDELMAN J: Mr Walker, what is the purpose then of the inclusion of subsection (3) in section 14, given that section 10B already precludes excluded amounts from being taken into account and calculating the amount of a progress payment, and would prevent a court from taking those amounts into account? Why would 14(3) be required, if not to effectively invalidate a payment claim?

MR WALKER: Well, the first proposition is that section 10B describes excluded amounts rather than their possible vitiating inclusion in a claim. That is the first point. The second point is that section 14 refers to a payment claim which is, then the same expression used, in section 15, that posits the possible response, or the permitted response to a payment claim, upon its service.

The notion of a claimed amount, which is of course derived from the payment claim, is then continued as the language and concept in section 16, so that the language continues to be used, the concept continues to be schematically functional, notwithstanding junctures have been reached in section 15, where, for example, in a payment schedule, an alleged excluded amount has been identified.

It would be, in our submission, an exercise in empty formalism for one to contemplate that there then could be a choice under section 16, the text of which does give a choice, if in fact it turns out that by reason of having once made a wrong inclusion in a claim, contrary to section 14(3)(b), there could not be any consideration by the court at all of the proper amount for judgment.

GORDON J: Mr Walker, is the position therefore that what we are left with is a group of cases – I do not know how big they are at the moment – where there is a progress claim made, which remains unpaid but includes an excluded amount, but is unresolved before the contract is terminated, in other words, in the period prior to termination of the contract could have either gone to adjudication or could have then resulted in a fresh application or a fresh claim?

MR WALKER: I think the answer is yes, though it is not possible, either from the inherent qualities of those kinds of cases or from anything in the nature of evidence, let alone from the Bar table, to estimate the magnitude of that class. However, what your Honour describes is a not unfamiliar state of disputation in the building industry, which is of course the very reason why we have this statute.

The second point is that this is a case where the character of the interest claim as an excluded amount was not left unresolved. It was conceded. Rather, this is a case that turned in the Court of Appeal, according to the majority, on the fact that that was a blot that could not be removed by any.....or by the ease with which the character of that relatively small inclusion in the claim financially speaking was able to be perceived.

In short, there was nothing about the circumstances that rendered this an inappropriate resort to the object set out in subsection 3(1) of the Act, which obviously is intended, under the cover of section 47, assurance of ultimate possibility of litigated or arbitrated merits, the continued cashflow in relatively timely fashion.

It is for those reasons, in our submission, that one looks back to the text to see whether there is anything in the sequence of 14, 15 and 16, and of course I should now include 10B as well, including in light of the definition in section 4, whether there is anything there that, as it were, says that the inclusion, contrary to subsection (3) of section 14 of an excluded amount, deprives a claimant of the capacity to choose to go to court seeking judgment for an amount that does not include that excluded amount, which is our case.

It is for those reasons, and the commercial conditions in which that looms so large in terms of timely receipt of payment, that this case, in our submission, is a worthy recipient of special leave, albeit the case is, of course, like many and probably most of the cases that come before your Honours, a question of statutory interpretation. It is an important statute, and it is an important element, as your Honours have seen from our written application, of the scheme as it is understood by the industry. May it please your Honours.

EDELMAN J: Mr Walker, I did not see, and I do not recall any discussion of any of the legislative history of 10B in any of the judgments. Given that it is not present in any of the other legislation, was there any particular reason why it was introduced?

MR WALKER: Your Honour, I am really not able, from my understanding, to give you anything other than the unhelpful self‑evident proposition that it is intended to describe the concept which is then used in the operative provisions to which I have drawn attention, I am sorry.

KEANE J: Thanks, Mr Walker. Yes, Mr Fenwick Elliott.

MR FENWICK ELLIOTT: Your Honours, I am obliged. Could I start by noting that my learned friend has said precious little about what he is asking this Court to do if he is allowed to proceed with this appeal, nor has he said much about the wording of the subsection in question, which is 16(4)(a)(ii), so could I ask the Court to look at those. I am on page 245, but it appears more than once. On page 245, you will see that the two provisions we are looking at, 16(2)(a)(i) and16(4)(a), are both substituted by the 2006 legislation, the amending legislation.

In answer to Justice Edelman’s question, there is not much in the second reading speech which tells us much about what that was intended to do, but clearly the introduction of this notion of excluded amount was intended to cut down the scope of the security of payment legislation in Victoria. That is absolutely evident from the whole concept of excluded amount.

Section 16(2)(a)(i) sets up a type of proceeding. It is a particular means by which the claimant might seek to enforce the debt which arises under 15(4). It is not the only way. A claimant can of course go to adjudication and I will explain why adjudication is the policy of the Act in the proper course.

So, this is a section 16(2)(a)(i) proceeding and so in the territory of 16(4)(a), if the claimant commences proceedings, and that is the proceeding that was commenced here and that is the basis upon which judgment was given at first instance, judgment is not to be given in certain circumstances. Those circumstances have arisen and so what my learned friend is asking this Court to do is to do the very thing which is forbidden by 16(4)(a), namely, to give judgment in these circumstances.

EDELMAN J: Unless the claimed amount no longer includes an excluded amount because it has been disclaimed or abandoned or so on.

MR FENWICK ELLIOTT: I am coming to that in just a moment, your Honour, if I may. We say three things follow from the proposition I have just put: first, that this appeal is, we say, a hopeless appeal, if it is allowed to proceed; secondly, for reasons which I will expand on, there is no remaining controversy as to the state of the law and decisions in the County Court in Victoria since March, and there are half a dozen or so of those, have happily fallen in line with the majority decision, which was in line with the only previous authority in Victoria on the point, which was the John Beever v Roads Case, which came to exactly the same conclusion, and we say that to allow this appeal to go forward would unhelpfully encourage claimants to have a go at turning the Act on its head.

In answer to Justice Edelman’s point, can “claimed amount” mean something other than as defined, we say no. The definition section appears at section 4 which sets out the meaning of words in this Act, which must mean all of this Act. It then refers to section 14, which in terms explains that the “claimed amount” means the amount that was originally claimed in the payment claim. That is a historical fact. Then the Act goes on to use the expression “the claimed amount” about a dozen times and, indeed, it uses the expression “claimed amount” in the second line of 16(4).

EDELMAN J: Mr Fenwick Elliot, you have said that the definition is, claimed amounts is the amount that was originally claimed. Could you point me to where it says, “originally claimed”?

MR FENWICK ELLIOTT: Yes, I can. It is in 14(2), which I have on page 243, which begins by referring to the “payment claim” which is a document – it is a matter of historical fact what was in that document – it has to:

indicate the amount of the progress payment that the claimant claims to be due -

and defines that as:

(the claimed amount) -

So, in other words ‑ ‑ ‑

EDELMAN J: Where does it say, “originally claimed”?

MR FENWICK ELLIOTT: It does not say “originally”, but the point I am making is that because the Act defines “claimed amount” as the amount that was in the payment claim, which is of course the origin of all such proceedings, as we are involved in now, we say it is tied to that amount.

EDELMAN J: You go one step further, and you say that that original claim can never be amended or altered.

MR FENWICK ELLIOTT: Well, what I am saying, your Honour, is that the language of 16(4)(a), and particularly 16(4)(a)(ii), uses clear language as to what a claimant has to satisfy a court of, and it is the claimed amount, which is a defined term. Once the Act has defined what that term is, and once that definition be applied a dozen times, it would be bizarre if part way through a subsection the expression, “the claimed amount”, was suddenly to take on some other meaning.

A remark that if it had not said “the claimed amount”, but the amount that the claimant claims in such proceedings, or the amount that is claimed in the 16(2)(a)(i) proceeding, still fails because this interest in the excluded amount was included in this claim and, indeed, it was not until the last day of an eight‑day trial that the applicant eventually conceded that this was an excluded amount. Up till then it was asserting that there was no excluded amount in the original payment claim.

That brings us on, I think, your Honours, naturally to the question of severance. In other words, can effectively the – the meaning of the claimed amount be changed by severing something out, and we say the majority is clearly right about that in saying that that argument fails at the threshold because severance is about saving something from invalidity.

To pick up a point made by Justice Edelman, although it is prohibited to put an excluded amount in a payment claim, to do so does not render the payment claim invalid per se. The claimant can still pursue his entitlement in adjudication, and the Act spells out that one of the adjudicator’s jobs is to identify what those excluded amounts are and to excise them from the amount of the determination.

So, it is not right to say that the inclusion of excluded amount makes the payment claim an invalidity – and we do not say that – we merely say that section 16(4)(a) should be given its ordinary and natural meaning and that to blue pencil something out of the payment claim would turn that clear expression on its head.

I need to turn to the other reasons given by my learned friend as to why leave might be given in this case. He suggests that the objects of the scheme of the Act are in issue. We say actually it is about the objects and scheme of the amended Act, because of course none of the issues we are concerned with were in the original Act at all, nor are they contained in any of the legislation in any other State or Territory in Australia.

We say that the majority was right in the policy of the Act, but that the option of going to the shortcut route, as I call it, the court route or the adjudication route, is such that the court route should only be used in a clear..... We see that from what my learned friend did not refer to you, namely, section 3(3), which I have at page 238, which sets out the means by which the object of prompt payment is to be delivered. You will see at 3(3)(c):

the referral of any disputed claim –

and this, of course, was a hotly‑disputed claim:

to an adjudicator for determination –

In other words, it is focusing on the adjudication route, not the court route, and then (d):

the payment of the amount of the progress payment determined by the adjudicator –

You will see from the side note, again, a provision that was introduced by the 2006 legislation. So, the object of the Act is to be achieved primarily through adjudication. That is what this Act is all about. No mention in these.....section 3(3) of the shortcut route. In other words, that is consistent with it being something which might occasionally be used in a clear case.

Now, your Honours, I mentioned in the response, which was now a little while ago, the statistics on all of this, and I should tell the Court that we have another year of statistics in since then, which do tell us what is happening in Victoria. The number of adjudications is up, and roughly half of the adjudications we see are in cases where there was no payment schedule. That was some hundreds of cases, 200‑odd cases.

So, the overwhelming majority of real‑life instances, where there is no payment schedule, claimants adopt the route of adjudication, not the option of going to court. When it goes to adjudication, the figures also tell us that in this bracket, that is to say, are claims between a million and $5 million, the average awarded by adjudicators is about a third of what is claimed.

So, it should not be assumed that these claims are inevitably for money which is due. The statistics show that most of what is claimed, according to adjudicators, was never due. It becomes payable, of course, but if the respondent omits to put in a payment schedule, and unhappily it is all too common for respondents to miss the deadline, the brutal deadline, to put in a payment schedule, unsurprising that it is often missed.

Your Honours, the fourth reason given by my learned friend for leave is that he suggests that there is a split in judicial opinion, but really that is not so. As I mentioned, prior to this case, the only binding authority was John Beever v Roads, which was a decision of Justice Digby, and in that case he approached the question of excluded amount by reference to not what was finally claimed but by what was in the payment claim, in other words, he applied the statutory definition. “Claimed amount” means what was in the original payment claim.

Since then, as I say, there have been half a dozen or so County Court cases, or rather since March, that is, to say the majority case decision here, all applying the majority decision without difficulty. Sometimes the finding has been that the claimed amount did include an excluded amount, so no judgment, and sometimes it goes the other way.

It is perfectly true, as my learned friend put in his written application, that these Victorian decisions in John Beever v Roads and the majority decision in this case are not reflected in the decisions in any other State or the decisions of this Court in relation to the New South Wales legislation. He is right about that – but that is because no other State has this scheme of excluded amount.

So, of course, the decisions in Victoria are going to be different and were this appeal to be allowed it would be of relevance only to Victoria; it would really have no relevance at all to the law in any other State or Territory of Australia.

There is then a suggestion of an absurdity in the minority judgment of Justice Sifris. There was a suggestion that to apply the statutory definition of “claimed amount” would lead to an absurd and unintended consequence. We have a number of things to say about that.

First of all, the provision clearly was intended – the language is absolutely clear – the draftsmen could have used other language. Secondly, there is nothing absurd about the statute saying that claims which include excluded amounts have to go to adjudication. It is not the role of the court to get stuck into lengthy examination of the content of a payment claim in order to identify which bits of it are excluded amounts and to quantify them.

In this case, we had the unhappy spectacle of a section 16(2)(a) proceeding leading to an eight-day trial. That cannot be what this legislation is about. It is for an adjudicator to do that job, not a court. It is worth remembering that although it does not render the payment claim invalid, nevertheless it is forbidden to put an excluded amount into a payment claim in the first place, and there is nothing absurd about visiting a consequence on a claimant who ignores that requirement.

It is worth noting that when a party is faced with the choice as to whether to go for the court proceeding or the adjudication route, he will inevitably have his lawyers instructed, and the lawyers can advise on what the position is, and if that advice is half sensible that advice will be, if there is any doubt about there being an excluded amount go to adjudication, do not go to court.

It might be said that the section is a bit harsh, but much less harsh than the rule that says that if you miss the date for a payment schedule by even a few hours you become liable to pay the whole lot because in an adjudication if there is no payment schedule it is essentially a turkey shoot. The adjudicator still has to identify the excluded amounts, but ‑ ‑ ‑

GORDON J: Mr Fenwick Elliott, do you accept that before this amendment came in in 2006 giving this alternative route, that the court would have had to entertain something like the eight‑day trial?

MR FENWICK ELLIOTT: Not really, because quite a lot of the eight day – well, in part, your Honour, but quite a lot of the eight‑day trial was on excluded amount, and that just did not exist under the original legislation.

GORDON J: But the dispute about what was to go into the claimed amount would have had to have been dealt with by the court, the components of it, whether or not it was accurate or not.

MR FENWICK ELLIOTT: Not really, your Honour, because if there is no payment schedule the court does not look at the issue of whether or not there is an underlying entitlement. This whole scheme is default judgment on stilts. That is the way the Act works. There is not necessarily any underlying entitlement. Finally, I would just simply say that the court should not, in this case, assume that there is any underlying entitlement at all. On the contrary, the respondent says that the performance of the claimant here, the applicant now.....it is the applicant who owes the respondent money, not the other way around.

But that, of course, is a matter for another day. I do not know if I can assist you further, but I appreciate my bell is about to go, so I have got to the end of what I had to say, save – I just missed this point, arithmetical errors. There is nothing in the Act which prevents the correction of arithmetical errors by the court. All the court does is it prevents judgment where there are excluded amounts. If there is an arithmetical error or a double‑counting which does not involve an excluded amount, of course a court can fix that under section 16. Is there anything else that I can help your Honours with?

KEANE J: Thanks, Mr Fenwick Elliott. Mr Walker, anything in reply?

MR WALKER: Briefly, may it please your Honours. The point about section 3 and subsection (3), to which I took you in‑chief, and laying out a procedure which appears to be in sequence, cannot possibly lead, with respect, to section 16, in the, what I will call, the altered Victorian scheme, working contrary to the evident object seen in subsections (1) and(2), particularly (1) of section 3. Those are the ends; subsection (3) talks about the means. They are means and they include the putting in of a payment schedule.

Section 16, which is at the heart of our proposed argument, is a choice that becomes available when that step in the intended procedure, as a means for achieving the object of the Act, has not been taken by the choice of the party in the position of the respondent. So, the failure to adapt the language of the statute to provide a payment schedule and the liability under section 15 accordingly, is one which, in our submission, provides this choice.

To call it repeatedly a shortcut is, with respect, by now, something of an irony. But, with respect, it is intended clearly by Parliament to take its place in a statute which continues to have the self-evident policy made explicit in subsection 3(1). The argument that my friend espouses, which is, as it were, to vindicate the approach of the majority in the Court of Appeal is, with respect, for the reasons identified by Justice Sifris, quite contradictory of that purpose.

It is to be recalled that the purpose of section 4’s reference to section 14 must at least include, whatever else it was for, the prohibited inclusion of excluded amounts by section 14(3). Given that my friend, with respect, correctly concedes the breach of that prohibition does not invalidate, that is, render not a payment claim something which purports to be a payment claim, then the obvious use, definitionally, of the reference to section 14 is to permit the blue pencil, which, without needing to call in aid concepts like severance, is the appropriate way to appreciate that a judgment can of course be adapted to the circumstances that appear to the
court, after consideration of the material which, in the language of the statute, will lead to the court to being satisfied one way or another.

It is for those reasons that the matter, in our submission, raises an important matter worthy of this Court’s consideration. The fact that County Courts have been following the Court of Appeal is, with respect, of absolutely no moment in that context. May it please your Honours.

KEANE J: Thanks, Mr Walker. The Court will adjourn briefly to consider the course it will take in this matter.

AT 3.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.18 PM:

KEANE J: The appeal foreshadowed by this application for special leave does not enjoy sufficient prospects of success to warrant the grant of special leave to appeal. The application is dismissed with costs.

AT 3.19 PM THE MATTER WAS CONCLUDED