Samco Steel & Precast Pty Ltd v Roxton Commercial Builders Pty Ltd [2024] VCC 783 (31 May 2024)

Last Updated: 3 June 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION BUILDING CASES LIST

Revised Not Restricted Suitable for Publication

Case No. CI-23-05293

Samco Steel & Precast Pty Ltd (ACN 158 108 653)	Plaintiff
v
Roxton Commercial Builders Pty Ltd (ABN 29 616 908 073)	Defendant

---

JUDGE:	Her Honour Judge Kirton
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2023
DATE OF JUDGMENT:	31 May 2024
CASE MAY BE CITED AS:	Samco Steel & Precast Pty Ltd v Roxton Commercial Builders Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VCC 783

REASONS FOR JUDGMENT
---

Subject: CONTRACTS - Building & Construction Industry Security of Payment Act 2002 (Vic)

Catchwords: Building contracts – Building and Construction Industry Security of Payment Act 2002 (Vic) – claim for payment by subcontractor from head contractor – three projects – ten payment claims – terms of contracts – when reference dates arose – whether relationship is governed by terms of plaintiff’s quotations or defendant’s standard terms – factual findings as to offers and acceptances – payment claims issued – no payment schedules issued by defendant – available defences – events occurring after last payment claim are not relevant to plaintiff’s entitlement to make claim

Legislation Cited: Building and Construction Industry Security of Payment Act 2002 (Vic)

Cases Cited: 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674; SJ Higgins v The Bays Healthcare Group Inc [2018] VCC 805; Drake Constructions Vic Pty Ltd v Three Construct Group Pty Ltd [2023] VCC 1325; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; Diamond Builders Pty Ltd v Gilridge Investments Pty Ltd [2023] VCC 1527; Aalborg CSP A/S v Ottoway Engineering Pty Ltd [2017] SASCFC 158; Bitannia Pty Ltd & Anor v Parkline [2006] NSWCA 238; Emery t/as Yarra Valley Commercial v J. Hutchinson Pty Ltd [2021] VCC 1019; Marques Group Pty Ltd v Parkview Constructions Pty Ltd [2023] NSWSC 625; Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114; Winslow Constructors Pty Ltd v John Holland Rail Pty Ltd [2008] VCC 1491; Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44; Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570; Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; South City Plaster Ply Ltd v Modscape Pty Ltd [2018] VCC 1576; Balmain New Ferry Co Ltd v Robertson [1906] UKPCHCA 4; (1906) 4 CLR 356; Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd & Anor [1998] 4 VR 559; Patterson v Roxton Commercial Builders Pty Ltd (Building and Property) [2023] VCAT 916; Chris Dwyer v Alfex CNC Australia Pty Ltd [2020] VCC 1674; Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence [2016] HCA 52; (2016) 260 CLR 340; Castle Construction Pty Ltd v N & R Younis Plumbing Pty Ltd [2019] NSWSC 225; Commercial & Industrial Construction Group Pty Ltd v R Construction Group Pty Ltd [2015] VSC 426; Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Bridgett	Dandanis & Associates
For the Defendant	L J Hogan	Jeremy Johnson & Associates

HER HONOUR:

Summary

1. The plaintiff contractor, Samco Steel & Precast Pty Ltd (Samco) supplied and installed structural steel and concrete panels to the defendant builder Roxton Commercial Builders Pty Ltd (Roxton) in relation to the construction and / or refurbishment of petrol stations at three properties:

(a) 3 Susono Way, Frankston (Frankston);

(b) 18-87 Pascoe Vale Road, Moonee Ponds (Moonee Ponds); and

(c) 614 Fullarton Road, Keilor Park (Keilor Park).

2. Samco served ten payment claims in respect of the three projects. There is no dispute that Roxton did not serve payment schedules in response to the payment claims.
3. Samco has applied for judgment^[1] under s 16(2)(a) of the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOP Act). The total amount claimed is $431,409.63 (including GST), plus costs and interest.
4. The claims were defended on a number of grounds. In summary, Roxton disputed the terms of the contract alleged by Samco; including what were the relevant reference dates within the meaning of the SOP Act, whether each of the ten payment claims were validly served, and whether evidence of subsequent events allegedly caused by Samco was admissible to found defences sufficient to deny the SOP Act judgment in relation to the Keilor Park claims.
5. For the reasons that follow, I am satisfied that Samco is entitled to judgment on each of its payment claims.

The Legal Context SOP Act

6. This court has endorsed the hearing of applications under the SOP Act on a summary basis by summons on originating motion with affidavit evidence.^[2] It is now well established that such claims must be proved on the balance of probabilities;^[3] with the quality of the evidence considered in light of the underlying “pay now argue later” policy behind the SOP Act and its interstate counterparts.^[4]
7. The purpose and operation of the SOP Act is by now well known. Briefly, the Act provides a method for those who engage in ‘construction work’ under a ‘construction contract’ to recover progress payments for their performance of that work in a timely fashion.
8. A construction contract is defined within the Act as, “a contract or other arrangement under which one party undertakes to carry out construction work, or to supply related goods and services, for another party.”^[5] The SOP Act applies to a broad definition of construction work;^[6] applies no matter the method of contract (writing, orally or a mixture of both),^[7] and continues to apply even in the contract is governed by a jurisdiction other than Victoria.^[8]
9. A useful summary of the application for judgment mechanism within the SOP Act was recently provided by Her Honour Judge Burchell in Diamond Builders Pty Ltd v Gilridge Investments Pty Ltd^[9] (Diamond Builders) as follows:

Section 16(2)(a) of the SOP Act provides that a claimant may recover from a respondent any unpaid portion of an amount claimed in a payment claim where the respondent fails to submit a payment schedule within time (or at all) in response to the payment claim.

Section 14 of the SOP Act concerns the form and content of payment claims. Section 14(1) reflects that, if entitled to a progress payment, a claimant may issue a payment claim to a respondent who is liable to make payment. The payment claim must identify the construction work to which the progress payment relates; must indicate the amount of the progress payment that the claimant claims to be due; and must state that it is made under the SOP Act.

....

It is now well established in Victoria that unless a payment claim answering the description in s14(1) of the SOP Act is served, there can be no application to a court under s16(2)(a)(i).

10. Accordingly, one of the first considerations of an application for judgment under s 16(2) of the SOP Act, is whether the payment claim meets the requirements of form and content specified in the relevant provisions of section 14 as follows:

(1)	A person referred to in section 9(1) who is or who claims to be entitled to a progress payment (the claimant) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment
(2)	A payment claim—
	(a)	must be in the relevant prescribed form (if any); and
	(b)	must contain the prescribed information (if any); and
	(c)	must identify the construction work or related goods and services to which the progress payment relates; and
	(d)	must indicate the amount of the progress payment that the claimant claims to be due (the claimed amount); and
	(e)	must state that it is made under this Act
(3)	The claimed amount—
	(a)	may include any amount that the respondent is liable to pay the claimant under section 29(4);
	(b)	must not include any excluded amount...

11. The manner in which compliance with s 14 is tested is not overly demanding,^[10] and the requirements for a payment claim “should not be approached in an unduly technical manner.”^[11]
12. Along with its submissions emphasising that an analysis need not be overly technical, Feature Point draws upon the statements of Vickery J in Gantley Pty Ltd v Phoenix International Group Pty Ltd,^[12] and in particular, the view that when assessing the identification of work “it is appropriate to take into account the background knowledge of the parties derived from their past dealings and exchanges of information.”^[13]
13. The Court must read s 14 with s 9 provisions that address the relevant reference date. Specifically, a payment claim can only be issued “on and from” ^[14] a reference date (which is typically defined within the contract, but otherwise can be calculated pursuant to s 9(2) of the SOP Act). A claimant who has undertaken construction work, “is entitled to a progress payment under this Act, calculated by reference to that date.”^[15]
14. Where a payment claim is not made in respect of a final, single, or one-off progress payment, it can only be served within, “the period determined by or in accordance with the terms of the contract.... Or the period of 3 months after the reference date referred to in section 9(2) that relates to that progress payment.”^[16]
15. Under s 15 of the SOP Act, “a person on whom a payment claim is served ... may reply to the claim by providing a payment schedule.”^[17] In the event that no payment schedule is provided to the claimant, “within the time required”^[18] by the contract, or “within 10 business days”^[19] after the service of the payment claim, “the respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.”^[20]
16. The claimant may make an application to recover the “unpaid portion of the claimed amount from the respondent,”^[21] under s 16(2) of the SOP Act, in the circumstances where the respondent has become liable to pay the claimed amount pursuant to s 15(4) of the SOP Act. ^[22]
17. The relevant parts of s 16 provide as follows:

(1)	This section applies if the respondent—
	(a)	becomes liable to pay the claimed amount to the claimant under section 15(4) as a consequence of having failed to provide a payment schedule to the claimant within the time allowed by that section; and
	(b)	fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.
(2)	In those circumstances, the claimant—
	(a)	may—
		(i)	recover the unpaid portion of the claimed amount from the respondent, as a debt due to the claimant, in any court of competent jurisdiction
	...
(4)	If the claimant commences proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt—
	(a)	judgment in favour of the claimant is not to be given unless the court is satisfied—
		(i)	of the existence of the circumstances referred to in subsection (1); and
		(ii)	that the claimed amount does not include any excluded amount; and
	(b)	the respondent is not, in those proceedings, entitled—
		(i)	to bring any cross-claim against the claimant; or
		(ii)	to raise any defence in relation to matters arising under the construction contract.

18. Accordingly, the available defences to the enforcement of a payment claim under s 16 of the SOP Act are limited to those matters required by subsection (4)(b). Judge Burchell in Diamond Builders described them as follows:^[23]

The available defences concern either the nature of the underlying contract or the form and service of the purported payment claim, and thus whether the payment claim is effective to trigger the procedures established by Part 3 of the SOP Act. More particularly, the defences to a payment claim enlivened by the formal requirements of the SOP Act are, in substance, that the payment claim:

(a) does not relate to a “construction contract” (including because it does not involve carrying out “construction work”), or it relates to a construction contract excluded from the operation of the Act under s7 (for example, a construction contract that forms part of a loan agreement, or one that is a domestic building contract under the Domestic Building Contracts Act 1995);

(b) fails to satisfy the formal requirements of s14(2) (for example, by failing to identify the construction work or failing to state that it is made under the SOP Act);

(c) was made when no valid reference date existed, including where it is served before an applicable reference date or relies on a reference date that has already been used up by an earlier payment claim;

(d) includes variations that are “excluded amounts” under s10B; and

(e) was not validly served on the respondent under either the terms of the contract or under s50.

Another issue that may arise, in rare circumstances, is where a defendant alleges that they are not party to or are not liable under the contract...

24. Notwithstanding s16(4)(b)(ii) of the SOP Act, Courts have permitted defences which involve a consideration of the issue of whether the payment claim was properly served (as distinct from whether the claim complied with the formal SOP Act requirements). For example, in Aalborg CSP A/S v Ottoway Engineering Pty Ltd^[24] (Aalborg), the Full Court of South Australia held (in relation to its equivalent of s 16(4)(b)(ii)):

[This section] does not preclude a respondent relying on estoppel on the issue whether the payment claim was served. First the estoppel issue will need to be determined as part of determining whether the claimant has brought itself within subsection 14(4) and section 15(1)(a). Secondly the raising of such an estoppel does not comprise a “defence in relation to matters arising under the construction contract” within the meaning of section 15(4)(b)(ii).

[These are sections 15(4), 16(1)(a) and 16(4)(b)(ii) in the Victorian SOP Act respectively].

20. A defence of misleading and deceptive conduct is also available, as it does not arise under the contract. Moreover, the defence can be relied upon without bringing a cross claim or substantive proceedings. In Bitannia Pty Ltd & Anor v Parkline^[25] (Bitannia), the New South Wales Court of Appeal held:

The District Court can give effect to equitable defences in relation to matters within its jurisdiction and there is no reason why it could not give effect to defences justified by the Trade Practices Act in relation to matters within its jurisdiction.^[26]

...

The next question is whether the Building Payment Act sought to preclude such a defence. Section 15(4)(b)(ii) precludes a respondent from raising “any defence in relation to matters arising under the construction contract”. But in truth, the defence raised did not arise under the contract, nor was it in relation to a matter arising under the contract: rather it was in relation to misleading or deceptive conduct on the part of the claimant which could lead to injunctive relief under s 87 of the Trade Practices Act. While it is true that the phrase “in relation to” may identify any rational connection between the prohibited defence and a matter arising under the construction contract, and while the entitlement to a progress payment depends in part upon the construction contract and conduct in execution thereof, this language should not be construed so broadly as to prohibit a defence based upon conduct undertaken in service of a payment claim for the purpose of creating a statutory right.^[27]

21. In Emery t/as Yarra Valley Commercial v J. Hutchinson Pty Ltd^,[28] (Emery), Judge Burchell referred to Aalborg and Bitannia and noted, “(t)here have been a small number of cases in which claims of misleading and deceptive conduct under the Australian Consumer Law have been found not to be precluded by the Act (or its interstate equivalents).” She continued:

Those cases have claimed misleading and deceptive conduct only in relation to the manner in which the plaintiffs perform their obligations under the Act (or its interstate equivalents), such as how they have served payment claims on the defendants, not in relation to performance or failure to perform under the construction contract.^[29]

22. In Marques Group Pty Ltd v Parkview Constructions Pty Ltd^[30] (Marques Group), Justice Rees confirmed that Bitannia established that breaches of the Australian Consumer Law can be pleaded by way of defence to a claim for judgment under the SOP Act, without bringing a cross-claim or substantive proceedings, and noted this had been followed in numerous cases including, Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd^[31]; Aalborg; and Winslow Constructors Pty Ltd v John Holland Rail Pty Ltd.^[32]
23. In respect of variations, s 10A sets out the classes of variation which are claimable variations and which may be taken into account in calculating the amount of a progress payment to which a person is entitled. The first class of variation is set out in s 10A(2) as follows:

10A	Claimable variations
...
(2)	The first class of variation is a variation where the parties to the construction contract agree—
	(a)	that work has been carried out or goods and services have been supplied; and
	(b)	as to the scope of the work that has been carried out or the goods and services that have been supplied; and
	(c)	that the doing of the work or the supply of the goods and services constitutes a variation to the contract; and
	(d)	that the person who has undertaken to carry out the work or to supply the goods and services under the contract is entitled to a progress payment that includes an amount in respect of the variation; and
	(e)	as to the value of that amount or the method of valuing that amount; and
	(f)	as to the time for payment of that amount.

24. The second class of claimable variation is set out in s 10A(3) as follows:

(3)	The second class of variation is a variation where—
	(a)	the work has been carried out or the goods and services have been supplied under the construction contract; and
	(b)	the person for whom the work has been carried out or the goods and services supplied or a person acting for that person under the construction contract requested or directed the carrying out of the work or the supply of the goods and services; and
	(c)	the parties to the construction contract do not agree as to one or more of the following—
		(i)		that the doing of the work or the supply of goods and services constitutes a variation to the contract;
		(ii)		that the person who has undertaken to carry out the work or to supply the goods and services under the construction contract is entitled to a progress payment that includes an amount in respect of the work or the goods and services;
		(iii)		the value of the amount payable in respect of the work or the goods and services;
		(iv)		the method of valuing the amount payable in respect of the work or the goods and services;
		(v)		the time for payment of the amount payable in respect of the work or the goods and services; and
	(d)	subject to subsection (4), the consideration under the construction contract at the time the contract is entered into—
		(i)	is $5 000 000 or less; or
		(ii)	exceeds $5 000 000 but the contract does not provide a method of resolving disputes under the contract (including disputes referred to in paragraph (c)).
	...

25. Section 10B(2) sets out the classes of amounts (excluded amounts) that must not be taken into account in calculating the amount of a progress payment to which a person is entitled. It states as follows:

10B	Excluded amounts
	...
(2)	The excluded amounts are---
	(a)	any amount that relates to a variation of the construction contract that is not a claimable variation;
	(b)	any amount (other than a claimable variation) claimed under the construction contract for compensation due to the happening of an event including any amount relating to—
		(i)	latent conditions; and
		(ii)	time-related costs; and
		(iii)	changes in regulatory requirements;
	(c)	any amount claimed for damages for breach of the construction contract or for any other claim for damages arising under or in connection with the contract;
	(d)	any amount in relation to a claim arising at law other than under the construction contract;
	(e)	any amount of a class prescribed by the regulations as an excluded amount.

26. In order to assess whether a payment claim contains excluded amounts, the court may only examine “the face of the payment claim,” which comprises the claim itself, any supporting documents, and any references to those documents.^[33]
27. The “supporting documents” of a payment claim will include documentation expressly or impliedly referred to on the face of the payment claim, or prepared in the lead up to the claim. The test is whether a reasonable building practitioner in the position of the recipient would have understood the payment claim to refer to such supporting documentation. ^[34]
28. Further:

What is necessary is an identification of the work which is sufficient to enable a respondent to understand the basis of the claim and provide a considered response to it. The test of identification is not an overly exacting exercise. It is to be tempered by what is reasonably necessary to be comprehensible to the recipient party when considered objectively, that is from the perspective of a reasonable party who is in the position of then recipient. In evaluating the sufficiency of the identification of the work, it is appropriate to take into account the background knowledge of the parties derived from their past dealings and exchanges of information.^[35]

The Issues for Determination

29. As stated above, Roxton defended the claims on a number of grounds. The parties summarised the issues for determination as follows, in respect of each project:

(a) Contract Formation:

• whether the quotations issued by Samco, or, the responsive purchase orders issued by Roxton, constitute the agreement between the parties; and
• If the purchase orders constitute the agreement, were Roxton’s Standard Terms are incorporated to the contract?

(b) What are the Reference Dates?

(c) Payment Claims:

• were they valid within the meaning of s 14(2) of the SOP Act?
• were they validly served?
• did they contain any excluded amounts?

(d) Is the evidence in relation to the alleged event/s of 15 September 2023 and 22 October 2023 at the Keilor Park site admissible?

(e) If the evidence referred to above at (d) is admissible, does it raise a valid defence in relation to the Keilor Park Payment Claims?

The evidence

30. Samco relied on the following affidavits of Su Chung Lai (also known as Jonathan Lai) (Mr Lai) its Operations Manager:

(a) 27 September 2023;

(b) 6 October 2023; and

(c) 17 October 2023.

31. Roxton relied on the following affidavits of Frank Nadinic, its Commercial Manager:

(a) 13 October 2023;

(b) 16 October 2023;

(c) 19 October 2023; and

(d) 2 November 2023.

32. Roxton also relied on an affidavit of Ricky Siow, its Project Manager, sworn 2 November 2023 in respect of the events at Keilor Park.
33. A consolidated bundle of documents was also helpfully prepared and filed.

Objections to the evidence

34. Roxton objected on admissibility grounds to some of Mr Lai’s evidence, on the basis that evidence of Roxton’s conduct after the contract was formed is not relevant. Samco accepted that post-contractual conduct is not usually admissible on the question of what a contract means; however, it is admissible on the question of whether a contract was formed.^[36] For that reason, I will allow Mr Lai’s evidence on this point, but I have not taken into consideration his evidence about payments made by Roxton.
35. Samco objected to the evidence given for Roxton on a number of bases. One was that the deponent Mr Nadinic had no direct engagement with any of the three projects. Roxton did not dispute that all communications and engagements had been with Mr Siow, or occasionally Mr Juvarajan. Mr Nadinic had no firsthand knowledge and was not even copied into the relevant email communication in which quotations and purchase orders were issued. Samco also filed a list of objections to specific paragraphs of Mr Nadinic’s affidavits. These complaints were generally on the basis of relevance, opinion, legal submission, generality or hearsay. I will deal with the objections where relevant to matters I have to determine.
36. I turn now to addressing each of the questions for determination.

QUESTION 1 - CONTRACT FORMATION AND TERMS

37. There was no dispute that there were three separate contracts; one for each job site. Each agreement constitutes a separate and distinct "construction contract" for the purposes of the SOP Act.^[37]
38. The dispute is about the terms of each contract. This necessitates determining whether each contract was formed by the offer of the quotation and the acceptance by the purchase order, or by the counteroffer of the purchase order and acceptance by Samco’s conduct in performing the works.
39. As stated above, Roxton contends that by responding to the quotations with its purchase order, it was rejecting Samco’s offer and was making a counteroffer; and when this counteroffer was accepted by Samco (demonstrated by Samco carrying out the works), the terms of the contract were those of the purchase orders, which included Roxton’s Standard Terms.
40. Samco rejects that contention. It says the quotation issued by Samco was an offer to enter into an agreement on the terms contained therein; an offer which was accepted by Roxton either through a telephone conversation or the issuing of a purchase order (and the accompanying emails).
41. There is a significant difference between Samco’s terms in its quotations and in Roxton’s Standard Terms, particularly in respect of the applicable reference dates for payment.

Implication of Standard Contract Terms

42. Samco accepts that terms can be incorporated into a contract by reference, but a party must have reasonable notice of those terms for that to take effect. While it is well established that where a transaction is carried out with the aid of unsigned documents, terms appearing in, or on, such documents may be incorporated into the contract by reference, but only if reasonable notice has been given of them.^[38]
43. The leading authority on the incorporation of terms by reference is the decision of the Victorian Court of Appeal in Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd & Anor^[39] (Maxitherm). That case involved the supplier of a failed autoclave, Maxitherm, who sought to rely upon its standard terms and conditions in defending a claim by the purchaser, Pacific Dunlop. The initial quotation issued by Maxitherm expressly stated that it was subject to attached conditions of tender. No such conditions were attached. The key questions for the court were, amongst other things, the point in time at which it could be said an agreement concluded, and the terms on which that agreement was concluded.
44. In that case, in an oft-cited paragraph, Buchanan JA observed as follows:^[40]

In determining whether and when a contract is made in the course of an ongoing series of communications, it is necessary to consider the communication as a whole.

45. Having considered the ongoing series of communications between the parties in detail, the Court of Appeal held that the standard terms and conditions were incorporated as terms of the contract. This was because the Court of Appeal was satisfied that the relevant terms "formed part of the offer” made by Maxitherm.^[41] Further, there could be no uncertainty as to the intended operation of the referenced terms in that case, because Maxitherm also referred Pacific Dunlop to the conditions of tender in separate communications made between the parties during negotiations of the terms of supply. In doing so, the Court of Appeal accepted that the respondent before it was "in the position of a person receiving an offer in the form 'I offer to contract on my standard terms and conditions’, who does not know what the other party's standard terms and conditions are and does not enquire, but goes ahead and accepts the offer.”^[42]
46. The defendant also referred to and relied on the decision of Cosgrave J (as he then was) in Chris Dwyer v Alfex CNC Australia Pty Ltd^[43] (Dwyer):

The contract in the present case comprised an offer by Alfex in the form of the quotation document and acceptance of that offer by Dwyer. The AMTIL T&C formed part of that contract as they were incorporated in the quotation document which Dwyer expressly accepted. It is evident that Dwyer carefully read the quotation document. He specifically recalled having read the section that referred to the AMTIL T&C. Though they were not attached, it was open to Dwyer to request them. In circumstances where Dwyer made no attempt to locate the terms prior to signing the quote, it is of no consequence that they were not available on Alfex’s website or elsewhere online. Alfex’s failure to attach the AMTIL T&C is not, in and of itself, enough to vitiate the words “subject to the attached AMTIL General Terms and Conditions”.

47. Further, in Dwyer, Cosgrave J discussed the implication of an unread term which would be unusual or unexpected. He summarised the views of Buchanan JA in Maxitherm as follows:^[44]

If a person accepting an offer has not read the incorporated terms, it is possible that acceptance may only be regarded as an acceptance of those terms that could be expected in a contract of the kind entered into. Thus the starting point is whether it is reasonable to assume a contracting party assented to a particular term. Whether such an assumption is reasonable is dependent upon the circumstances of the particular case.

48. As mentioned above, the construction of a contract is an objective question for the court, and the subjective beliefs of the parties are generally irrelevant.^[45] Further, evidence of post-contract conduct is not admissible in determining its terms. Accordingly, I have not had any regard to Samco’s submissions that the fact that Roxton paid its early claims which were made using the reference dates set out in its quotations, indicates there was no dispute that these were the relevant terms of the contract.

The facts in the present case

Frankston

49. Mr Lai (the Operations Manager for Samco) gave evidence that the engagement of Samco was coordinated through discussions and email correspondence between himself and Mr Ricky Siow, Roxton’s Project Manager. He deposed that Mr Siow requested Samco prepare quotations for the relevant works.^[46]
50. It was not disputed that Mr Siow asked Mr Lai to quote for the Frankston project. On 22 February 2023, Samco issued quotation Q1432 -RS0^[47] to Roxton for the fabrication and erection of structural steel framing for the refurbishment of an existing petrol station at the Frankston property.
51. The quotation covered the following scope of works:

(a) Fabrication of structural steel;

(b) Production of steel shop drawings;

(c) Erection of steel framing;

(d) Cleaning and site preparation for the priming structures;

(e) Galvanising of exposed steel members;

(f) Site set up and preparation.

52. The total quoted price was $69,200.00 plus GST. Each of the quotations included written terms and conditions, including payments to be made on the following stages:

(a) 30% upon acceptance of the quotation;

(b) 30% prior to delivery; and

(c) 40% on completion.

53. According to Mr Lai, unlike the other projects, Roxton did not send a Purchase Order to Samco. Instead, Mr Siow forwarded the architectural drawings for the site to Mr Lai.^[48] Mr Siow then had a telephone conversation with Mr Lai, when he directed Samco to proceed with the works.^[49] Mr Lai confirmed the acceptance by way of an email to Mr Siow dated 16 March 2023,^[50] which stated:

Hi Ricky,

As per our tele-conversation.

We confirm that we will proceed with preparation of shop drawings as per your request.

Kindly sign acceptance on our quote and send it back to us for our record....

54. On the other hand, Mr Nadinic deposed that Roxton did issue a Purchase Order in response to Samco’s quotation (Purchase Order 10538-PO001)^[51] (Frankston Purchase Order).
55. Mr Lai has deposed^[52] on behalf of Samco that at no time did they receive a copy of the Frankston Purchase Order. Additionally, Mr Lai states that, “(t)he absence of a “purchase order” was what prompted me to issue an email to Mr Siow ... in which I confirmed .... that Samco would proceed with the preparation of shop drawings per the quotation we had provided.”^[53]
56. Mr Nadinic disputes that Samco never received the Frankston Purchase Order and exhibits to his third affidavit a copy of the email dated 16 March 2023 attaching the Frankston Purchase Order.^[54]
57. I prefer the evidence of Mr Lai to Mr Nadinic on the question of whether the Frankston Purchase Order was ever delivered to Samco. Mr Lai was intimately involved with the project. His first-hand evidence was that he did not receive the Purchase Order. Further, he said that he reviewed all project correspondence and has no record of having received it. This evidence is also consistent with the telephone conversation he then had with Mr Siow. Had he received the Purchase Order, the telephone conversation would not have been necessary. On the other hand, Mr Nadinic’s evidence is second-hand as he was not directly involved with the project. He does not say where he located the email exhibited to his affidavit of 19 October 2023. Presumably it is from Roxton’s files but he does not depose to having first-hand knowledge that it was sent, nor that it was delivered. Tellingly, Mr Siow swore an affidavit^[55] in which he said he issued the Purchase Order for Keilor Park, but he gave no specific evidence about the Frankston Purchase Order despite this being a live issue.

Moonee Ponds

58. As with the Frankston and Keilor Park projects, Mr Lai gave evidence that the engagement of Samco was coordinated through discussions and email correspondence between himself and Mr Siow. He deposed that Mr Siow requested Samco prepare quotations for the relevant works.^[56]
59. On or around 26 April 2023, Samco provided Roxton with two quotations for the provision of steel framing for the Moonee Ponds site.

(a) Q1496CC RS1^[57] – for $208,000.00 plus GST for the following works on the Control Building and the Fuel Canopy:

(i) Fabrication of structural steel;

(ii) Erection of steel framing;

(iii) All structural members to be cleaned and primed with Zinc phosphate primer to AS 2312; and

(iv) site set up and preparation.

(b) Q1496PA RS1^[58] for $82,500.00 plus GST for the following works on the Auto Wash and Plant Room:

(i) Fabrication of structural steel;

(ii) Steel shop drawings;

(iii) Erection of steel framing;

(iv) All structural members to be cleaned and primed with Zinc phosphate primer to AS 2312; and

(v) Site set up and preparation.

60. Each of the quotations included written terms and conditions, with the reference dates set at the same milestones as that of the other projects:

(a) 30% upon acceptance of the quotation;

(b) 30% prior to delivery; and

(c) 40% upon completion.

61. The quotations each contained a space to be signed by Roxton as acceptance of the quotation. Roxton did not sign them, but instead in response, Roxton sent Samco a purchase order (no. 10520 – P0015)^[59] dated 26 April 2023 (MP Purchase Order). The MP Purchase Order was for the same works and same price as the quotations, and stated in small print at the bottom of the page, “(t)his Purchase Order is subject to Roxton Commercial Builders contract conditions, which are available upon request.”^[60]
62. Roxton’s email which accompanied the Purchase Order stated: “Please find attached PO for the car wash, plantroom, control building and canopy. Please advise the earliest you can start on the control building”.^[61] There was no mention of the ‘Roxton Commercial Builders contract conditions’, or that the MP Purchase Order was a counteroffer, or that Samco would need to accept the counteroffer.
63. It was not disputed that Samco had not seen the ‘Roxton Commercial Builders contract conditions’ either before or during the works. Mr Lai deposed that the first time he had seen the document was when it was exhibited to Mr Nadinic’s second affidavit in this proceeding. Like the Keilor Park project, he said that the ‘Roxton Commercial Builders contract conditions’ were not provided to him as part of the request for quotation, or upon acceptance of each quotation or at any time during the course of the works. The document was not referred to in any of the discussions and email communications he had with Mr Siow. Further, there was no mention of any additional contract terms in any of the communications with Mr Siow.^[62]

Keilor Park

64. As with the Frankston and Moonee Ponds projects, Mr Lai’s evidence was that Mr Siow requested Samco prepare quotations for this project.^[63] On 28 March 2023, Samco issued quotation Q1435 RSP3^[64] to Roxton for the following scope of work:

(a) Manufacture of precast panels;

(b) Fabrication and erection of structural steel framing;

(c) Production of shop drawings;

(d) Erection of structural steel framing and precast concrete panels;

(e) Cleaning and priming structures;

(f) Galvanising of steel members;

(g) Site set up and preparation.

65. The quoted price was $305,300.00 plus GST and the reference dates were set at the same milestones as that of the Moonee Ponds and Frankston quotations as follows:

(a) 30% upon acceptance of the quotation;

(b) 30% prior to delivery; and

(c) 40% upon completion.

66. The quotation contained a space to be signed by Roxton as acceptance of the quotation. Roxton did not sign it, but instead in response, Mr Siow responded on 29 March 2023 by sending Mr Lai a Purchase Order 10519 – PO011^[65] (KP Purchase Order). The amount was the same as the quoted amount and the scope of work appears to be the same, although less detailed than the quotation. The KP Purchase Order stated in small print on the bottom of the page, “(t)his Purchase Order is subject to Roxton Commercial Builders contract conditions, which are available on request.”
67. Mr Siow’s email which accompanied the KP Purchase Order stated: “Please find attached PO for the Keilor Park project. Please advise on the earliest submission of the shop drawings for review.”^[66] There was no mention of the ‘Roxton Commercial Builders contract conditions’ in the email, or that the KP Purchase Order was a counteroffer, or that Samco would need to accept the counteroffer.
68. Like Moonee Ponds, it was not disputed that Samco had not seen the ‘Roxton Commercial Builders contract conditions’ either before or during the works. Mr Lai deposed that the first time he had seen the document was when it was exhibited to Mr Nadinic’s second affidavit in this proceeding. He said that the ‘Roxton Commercial Builders contract conditions’ were not provided to him as part of the request for quotations, or upon acceptance of each quotation, or at any time during the course of the works. The document was not referred to in any of the discussions and email communications he had with Mr Siow. Further, there was no mention of any additional contract terms in any of the communications with Mr Siow.^[67]

Application of principles to facts

69. As was noted by Buchanan JA in Maxitherm, in determining whether and when a contract is made in the course of an ongoing series of communications, it is necessary to consider the communication as a whole. Further, as noted by Cosgrave J in Dwyer, when seeking to import a particular term into a contract, the starting point is whether it is reasonable to assume a contracting party assented to that particular term. Whether such an assumption is reasonable is dependent upon the circumstances of the particular case.
70. I am satisfied on the evidence before me of the following matters:

(a) Roxton requested Samco to provide the steel framing and pre-cast concrete panel services for the three separate sites. This is an invitation to treat.

(b) In response to these requests, Samco provided quotations which in each case, identify the construction work to be carried out, the related goods and services to be performed, the cost for doing so, and the terms on which payments would be claimed and paid.

(c) The issuing of these quotations by the plaintiff were unarguably offers to enter into an agreement on the terms contained therein.

(d) For the Moonee Ponds and Keilor Park projects, Roxton issued Purchase Orders in response. These were neither expressed as, nor framed to be, a counteroffer. The email communications accompanying the Purchase Orders made it clear that both parties regarded the process of entering into the contract was complete upon the issuing of the Purchase Orders, and intended for the works to commence on the basis of that concluded agreement. The works did in fact commence immediately.

(e) For the Frankston project, I am satisfied that no Purchase Order was issued by Roxton. For the reasons set out above, the telephone conversation between Mr Lai and Mr Siow and the subsequent email from Mr Lai, is inconsistent with Mr Nadinic’s version of events. I consider it more likely than not that no Purchase Order was sent.

71. For the Moonee Ponds and Keilor Park projects I accept the plaintiff’s submission that the wording of the emails is wholly inconsistent with a suggestion that the parties at that point were still negotiating the terms of the agreement. Instead, they clearly indicate the existence of a concluded agreement and an intention for the works to commence on the basis of that concluded agreement.
72. I do not accept Roxton’s contention that, “there is nothing in the email communications relied upon by Samco that would support the contention that it was ‘clear that both parties regarded the process of entering into the contract as complete.’”^[68] Roxton refers to the fact that none of the quotations was signed, even though each quotation expressly provided a signature block for that purpose. I do not consider that conclusive; as, in my view, the emails sent in response by Mr Siow confirm acceptance of the quotations. Further, the telephone conversation between Mr Lai and Mr Siow in respect of the Frankston project confirmed acceptance of the quotation. There was no alleged “counteroffer” even made for their project.
73. In my opinion, the decisions in Maxitherm and Dwyer can be distinguished from the present circumstances. Considering the communications as a whole, Samco was not in the same position as the unsuccessful parties in those cases.
74. In Maxitherm, the Court was satisfied there could be no uncertainty as to the intended operation of the referenced terms, because they were referred to in separate communications during negotiations of the terms of supply and there was subsequent confirming conduct. In the present case, the reference was a line on a Purchase Order, not mentioned elsewhere before, during, or after the negotiations, and inconsistent with Roxton’s conduct (and the contents of its covering emails). As Mr Lai said,^[69] the contents of the emails were consistent with his understanding that the quotations for Moonee Ponds and Keilor Park had been accepted and the works were to commence immediately. For the Frankston project, Roxton confirmed the acceptance by telephone, with no mention of any different terms and conditions
75. In Dwyer, the Court found that Dwyer was given a quotation document, which he read in detail before expressly signing his acceptance of the quotation. He specifically recalled having read the section that referred to the AMTIL T&C. That is quite different to the present case which involves two commercial building companies. Roxton asked Samco to provide quotations, and Samco did provide the quotation documents. For two projects, Roxton acted for all intents and purposes, as if it accepted the quotations, as evidenced by its emails and conduct. For the third project, Roxton confirmed the acceptance by telephone, with no mention of any different terms and conditions.
76. Further, unlike Dwyer, Roxton did not argue that the Roxton Standard Terms were standard industry terms. Instead, it conceded that they were not. Its submission went only so far as saying that the standard terms should be read as a clear rejection of the terms put forward in Samco’s quotations.^[70]
77. I also note the decision of Member A Horan of the Victorian Civil and Administrative Tribunal in Patterson v Roxton Commercial Builders Pty Ltd (Building and Property)^[71] (Patterson). This was a claim by a subcontractor against the same defendant as in the present matter, and in which the same defence was run by Roxton. While not binding on me, it is persuasive. For the sake of comity I have regard to it.
78. The facts (at least insofar as they were set out in the VCAT decision) were in all material aspects the same as the present matter. Roxton seeks to distinguish this case from at least the Moonee Ponds and Keilor Park projects on the basis that in Patterson, Mr Siow’s email responding to the subcontractor’s offer (which attached the Purchase Order) used the word “confirmation.” In the present matter that word was not used by Mr Siow in his emails. I do not accept that is a material difference. The emails in respect of the Moonee Ponds and Keilor Park projects contained other words which indicated Mr Siow had accepted the quotations, as discussed above. (Of course there was no email in respect of the Frankston project).
79. In Patterson, Member Horan concluded as follows:^[72]

Roxton submitted that Mr Siow’s 4 March 2020 email was intended to incorporate additional and extensive terms and conditions, by way of the reference to the Roxton Terms at the foot of the purchase order attached to his email. This is inconsistent with Roxton’s express intention to accept [the subcontractor’s] offer, as evidenced in that email.

Unlike in Maxitherm, Roxton had not previously brought the Roxton Terms to [the subcontractor’s] notice. Furthermore, Mr Siow’s 4 March 2020 email did not state that the awarding of the contract was subject to any acceptance by [the subcontractor] of the Roxton Terms. Mr Siow’s email was not framed as an offer.

Accordingly, Roxton cannot rely upon the Roxton Terms as they did not form part of the contract between [the subcontractor] and Roxton. For that to have occurred, Roxton needed to have drawn [the subcontractor’s] attention to those terms well before Roxton’s unequivocal acceptance of [the subcontractor’s] offer on 4 March 2020.

80. The present case (at least in respect of the Moonee Ponds and Keilor Park projects), is on all fours with that decision and I have reached the same conclusion as Member Horan.

Conclusion

81. I accept Samco’s submission that the three contracts were formed by way of offers made by Samco’s written quotations and accepted by the emails and Purchase Order sent by Mr Siow in respect of Moonee Ponds and Keilor Park, and by Mr Siow in the telephone conversation with Mr Lai in respect of Frankston. Accordingly, the terms of the three contracts were those contained in Samco’s quotations. The “Roxton Commercial Builders contract conditions” were not incorporated by reference and were not terms of the contracts.
82. As I am satisfied of the contract terms, I do not need to consider Samco’s alternate argument that Roxton’s Standard Terms are void for uncertainty.

QUESTION 2 - THE REFERENCE DATES

83. Having determined that the terms of the contracts are those contained in Samco’s offers, the answers to the questions of which are the applicable reference dates in each case, and what is the mechanism for calculating entitlements to progress payments, are straightforward.
84. It is well established that the existence of a “reference date” under a construction contract within the meaning of s 9(2) is a precondition to the making of a valid payment claim under s 14(1).^[73]
85. Section 9(2)(a)(ii) of the SOP Act provides that a “reference date” may mean “a date determined by or in accordance with the terms of the contract as ... a date by reference to which the amount of a progress payment is to be calculated...” In accordance with my findings above, I am satisfied that the reference dates in the three contracts are those specified percentages following the completion of the prescribed milestones or stages, as set out in Samco’s quotations,
86. Roxton does not dispute that a contractual provision providing for a claim to be submitted on the achievement of milestones (e.g. “upon completion”) may give rise to a “reference date”.^[74] Instead, Roxton’s argument was that the terms of the contract are those set out in Roxton’s Standard Terms. For the reasons above, I reject this submission.
87. The reference dates in each of the three contracts in question are therefore as follows:

(a) 1st reference date 30% upon acceptance of quotation

(b) 2nd reference date 30% prior to delivery

(c) 3rd reference date 40% on completion.

QUESTION 3 – THE PAYMENT CLAIMS:

88. Samco made payment claims for each project upon the reaching of various milestones. It is not disputed that each invoice satisfied the formal requirements of s 14 of the SOP Act. That is:

(a) each invoice adequately identified the construction work or related goods and services to which it relates by reference to the related quotation; and

(b) each invoice indicated the amount of the progress payment; and

(c) each invoice was expressly stated to be a claim under the Act, containing the words: “This claim is being made under the Building and Construction Industry Security of Payment Act 2002.”

89. Mr Lai gave evidence about the dates each milestone was completed, the dates each payment claim was made, and the fact that Roxton did not issue any payment schedules at all. His evidence was not disputed.
90. Instead, Roxton opposes a number of the payment claims on the grounds that:

(a) assuming the Roxton Commercial Builders contract conditions (“Roxton’s Standard Terms”) apply to the contract, the claims were not made in accordance with the applicable reference dates;

(b) the claim includes claim for a deposit, which is not provided for in the contract, assuming Roxton’s Standard Terms apply to the contract;

(c) the claim included claims for variations allegedly not requested, or directed by Roxton. These are not claimable as first or second class variations within the meaning of s 10A and are therefore excluded amounts. Further, by their inclusion the whole claim becomes invalid;

(d) a claim is made for construction work completed after the relevant reference date arose; and

(e) in respect of the Keilor Park project, Roxton is entitled to rely on defences arising from Samco’s alleged conduct in September and October 2023. I will address this defence at Question 4 below.

Frankston:

91. There is no dispute that Samco carried out its works on the Frankston project and this was completed by 7 June 2023.^[75]
92. Samco has also claimed variations to the Frankston agreement. The variations are as follows:

(a) Variation VO1B:^[76] dated 29 May 2023 for $13,200.00 + GST. To supply & install structural steel for the proposed renovation to existing building as per engineering drawings SBEC 2204-5 Sheet 3.

(b) VO2:^[77] dated 22 May 2023 for $2,700.00 + GST. To supply & apply Inorganic Zinc Silicate to 10 x steel assemblies – transport charges.

(c) VO3:^[78] dated 20 June 2023for $5,900.00 + GST. To rectify 7 x columns due to incorrect column footing levels and to supply & install new column stubs to make up levels due to deeper column footing levels.

93. Samco issued at least four payment claims: Payment claims Frankston Claim 1 and Frankston Claim 2 were made for the contracted works. Variation VO2 was claimed in Frankston Claim 2, VO1B was claimed in Frankston Claim 3 and VO3 was claimed in Frankston Claim 4. I will now consider each of the claims, and Roxton’s defences.

Frankston Claim 1 – Invoice 1971

94. On or about 27 April 2023, Samco issued Roxton with Frankston Claim 1 (invoice no 1971)^[79] for the sum of $20,760.00 (excl GST). The invoice was stated to be “Upon acceptance of quotation – structural steel (30% x $69,200)”.
95. Roxton’s denies liability for this claim on the grounds that:

(a) it accepts that the claim was made after a valid reference date (whether that is the reference date it says was agreed by Roxton’s Standard Terms, or a reference date which arose in accordance with s 9(b) of the Act); however

(b) it says that as the terms of the contract were Roxton’s Standard Terms, which did not allow Samco to claim a deposit, this payment claim does not comply with sections 10(1) and 11(1) of the Act, as it was not calculated in accordance with the terms of the contract. It therefore falls foul of s 14(1).

96. I do not accept Roxton’s defences to this payment claim. For the reasons set out above, I have found that the terms of the contract are those set out in Samco’s quotation, and not Roxton’s Standard Terms. The terms of the quotation expressly provide that Samco may charge a deposit of 30% of the contract price. The claim made in Frankston Claim 1 is calculated in accordance with the terms of the contract. Accordingly, the claim does comply with sections 10(1) and 11(1) of the Act. Samco is entitled to payment of this payment claim.

Frankston Claim 2 – Invoice 1998

97. On or about 7 June 2023, Samco issued Roxton with Frankston Claim 2 (invoice no 1998)^[80] This invoice included:

(a) the balance of the structural steel “Upon completion”, and taking into account the amount already claimed in invoice no. 1971, $20,760.00 (excl GST), being $48,440 excl GST; and

(b) variation VO2 for $550.00 excl GST.

98. Roxton’s defence is that this claim includes a claim for an excluded amount (Variation V02) which was a variation not agreed to by Roxton. Mr Nadinic’s evidence was that “a purchase order was not sent to the plaintiff for those variations... [and] Mr .... Lai does not follow this up.”^[81]
99. Mr Lai’s evidence^[82] is that Variation V01B was accepted by Roxton by provision of Purchase Order 10538 - PO011 dated 6 June 2023. Roxton did not provide any purchase order or signed variations for Variations V02 and V03; but Mr Siow stated in an email to him dated 20 June 2023, “(p)lease find attached signed variations for Keilor Park and Moonee Ponds. I have to get the one for Frankston approved but I didn’t think it will be an issue.”^[83] Mr Lai said he understood this to mean variations V02 and V03 would be approved as a matter of formality shortly.
100. In assessing whether a variation has been agreed, I may consider the face of the payment claim itself, together with any document expressly or impliedly referred to on the face of the payment claim, and supporting documents prepared in the lead up to the claim.^[84]
101. In the present matter, the variation was dated 22 May 2023. It is unarguably a document referred to in the payment claim. The variation document describes that the variation is to change the scope of work from HDG (hot dipped galvanising) to “supply and apply inorganic zinc silicate.”
102. The variation is not signed. I note Mr Nadinic’s statement that the variation was not agreed to and that no purchase order was sent. Mr Lai’s evidence at its highest, is that he understood Roxton had approved the variation and the signing was a matter of formality. This is reflected in Mr Siow’s email of 20 June 2023. For those reasons I am not satisfied that the variation complies with the requirements of s10A(2). There is insufficient evidence of agreement as at the date of the payment claim.
103. Having said that, I am satisfied that the variation falls within the requirements of s10A(3). That is, it constitutes a second class of claimable variation. Based on the first-hand recollection of Mr Lai, which is supported by the email from Mr Siow, I am satisfied that the work was carried out under the construction contract and it was Mr Siow on behalf of Roxton, who requested or directed the varied work to be carried out. The changed method of treating the steel was presumably complete by the time the steel was delivered to site and there is no evidence that Roxton rejected that treatment. In any event, even if the parties did not agree that this change constitutes a variation, or disagree as to the value of the amount payable, the variation does constitute a second-class variation and is claimable.
104. For those reasons, Roxton’s objection to Frankston Claim 2 is rejected.

Frankston Claim 3 – Invoice 2018

105. On or about 3 July 2023, Samco issued Roxton with Frankston Claim 3 (Invoice No 2018)^[85] for $13,200.00 (excl GST). This was described as a claim for variation VO1B.
     106. Roxton does not dispute this payment claim.

Frankston Claim 4 - Invoice 2024

107. On or about 12 July 2023, Samco issued Roxton with Frankston Claim 4 (Invoice No 2024)^[86] for $5900.00 (excl GST). This was described as a claim for variation VO3.
108. Roxton’s defence is that this claim includes an unapproved variation (VO3). For the reasons set out above in relation to Frankston Claim 2, I reject Roxton’s defence to this claim. I note that the variation is for works “to rectify 7 x columns due to incorrect column footing levels and to supply & install new column stubs to make up levels due to deeper column footing levels.” Mr Nadinic has given no evidence as to why this variation was rejected, other than to say no purchase order was issued. It may be there is a dispute over whether the additional works constitute variations, or the amount claimed, but the variation nevertheless falls within the second class of claimable variation per s 10A(3).

Moonee Ponds:

109. There is no dispute that the Autowash and Plantroom were completed on 27 April 2023, the Control Building works reached Practical Completion on or by 17 May 2023 and the Fuel Canopy works on or by 29 May 2023.^[87] Payment claims MP2 and MP3 were made for these works (details below).
110. Samco has also claimed variations to the Moonee Ponds agreement. Variations VO1 and VO2 were claimed in payment claim MP3 and VO3 – VO6 were claimed in payment claim MP4. The variations are as follows:

(a) Variation VO1:^[88] caulking, grouting, patching & prop removal Autowash and Plantroom totalling $2950.00 plus GST

(b) Variation VO2:^[89] caulking, grouting, patching & prop removal to the Control Building & Fuel Canopy totalling $3130.00 plus GST

(c) Variation VO3:^[90] To supply and install 17 x stitch plates and 4 x corner brackets – Auto Wash, Plant room totalling $1800.00 plus GST;

(d) Variation VO4:^[91] To adjust and replace 3 x column bases of Auto Wash to suit the existing HD bolts (in correct orientation) – Auto Wash totalling $2800.00 plus GST;

(e) Variation VO5:^[92] To supply and deliver new purlin, bridging and cleats for the proposed gutter. They were not used as Client instructed other to install using existing purlin – Auto Wash totalling $200.00 plus GST;

(f) Variation VO6:^[93] To drill 80 holes for bolts securing the steelworks as the ferrules were out of place – Auto Wash, Plant room & Control Building, totalling $2000.00 plus GST.

111. The following payment claims were made:

MP Claim 2 - Invoice 1968

112. This was dated 27 April 2023^[94] and included:

(a) Completion of the Autowash and Plantroom – balance of $25,500.00 plus GST. This was in accordance with the terms of the contract which required payment of 100% of $82,500 upon completion of structural steel work, and allowed for $57,000.00 already paid.

(b) Acceptance of quotation for the Control Building & Fuel canopy works - $62,400.00 plus GST. This was in accordance with the terms of the contract which required payment of 30% of the contract price of $208,000.00 upon acceptance of quote.

113. Roxton’s denies liability for this claim on similar grounds to Frankston Claim 1, namely that:

(a) The terms of the contract were Roxton’s Standard Terms, which did not allow Samco to claim a deposit. This payment claim is for a deposit and therefore does not comply with sections 10(1) and 11(1) of the Act, as it was not calculated in accordance with the terms of the contract. It therefore falls foul of s 14(1).

(b) Alternatively, Roxton submits that the claim was made before the first reference date arose (on the basis that it was the reference date agreed by Roxton’s Standard Terms, or a reference date which arose in accordance with s 9(b) of the Act).

114. I do not accept Roxton’s defences to this payment claim. For the reasons set out above, I have found that the terms of the contract are those set out in Samco’s quotation, and not Roxton’s Standard Terms. The terms of the quotation expressly provide that Samco may charge a deposit of 30% of the contract price. I have also found that the contract allows for a payment “Upon acceptance of quotation” (i.e. a deposit). The claim made in MP Claim 2 is calculated in accordance with the terms of the contract. Accordingly, the claim does comply with sections 10(1) and 11(1) of the Act. Samco is entitled to payment of this payment claim.

MP Claim 3 - Invoice 1996

115. This was dated 26 May 2023^[95] and included:

(a) Delivery to Site of the Control Building & Fuel Canopy steel – $62,400.00 plus GST. This was in accordance with the terms of the contract which required payment of 30% of $208,000 upon delivery.

(b) Completion of the Control Building & Fuel Canopy works – balance of $83,200.00 plus GST, This was in accordance with the terms of the contract which required payment of 40% of $208,000 upon completion.

(c) Variations VO1 – VO2.

116. Roxton’s defence to the claim is that:

(a) It included claims for 2 variations which Mr Nadinic says were not requested or directed by Roxton. As these are not claimable as first or second class variations, they are excluded amounts. By their inclusion, no part of MP Claim 3 can be subject of an award for judgment.

(b) Secondly, MP Claim 3 includes a claim for construction work completed after the relevant reference date arose. Roxton’s original submission^[96] was that any work performed after the reference date arose can only be claimable following the occurrence of the next reference date. Moreover, the value of the offending works cannot be severed from MP Claim 3.

117. I do not accept Roxton’s first ground of defence. For the reasons set out above in relation to the Frankston variations, I am satisfied that variations VO1 and VO2 are claimable variations, either as first or second class within the meaning of s 10A. Mr Lai does not appear to have included copies of the variations in his evidence, because he says they are not part of Samco’s claims in this proceeding. Instead, he deposes that the relevant variations for this proceeding are VO3 – VO6.^[97] He exhibits each of VO3, VO4, VO5 and VO6, signed by Mr Siow. Mr Nadinic does not take issue with any of these variations.
118. Mr Nadinic has provided no evidence that he has firsthand knowledge of the project. His statement that variations VO1 and VO2 claimed in MP Claim 3 were not approved seems to be based on the fact that no purchase orders were issued by Roxton for these variations. He relies on Roxton’s usual practice to issue purchase orders and draws the conclusion that because no purchase order was issued the variations were not approved. However, he has not given any evidence of Mr Siow’s instructions to Mr Lai. On the other hand, Mr Lai’s firsthand evidence is that the agreements were varied on a number of occasions at the request of Roxton. He acknowledges no purchase orders were sent in connection with two Frankston variations. While he does not specifically address the Moonee Ponds variations VO1 and VO2, his affidavit is made in response to Mr Nadinic’s and I accept Mr Lai’s evidence is that the variations in dispute were requested by Mr Siow.
119. It appears that Roxton has now withdrawn its second ground of defence,^[98] namely that MP Claim 3 includes a claim for construction work completed after the relevant reference date arose, and was therefore not claimable at that time. However in case it is still pressed, I do not accept that submission. Roxton purports to rely on authorities for this proposition, including Commercial & Industrial Construction Group Pty Ltd v R Construction Group Pty Ltd.^[99]
120. I agree with Samco’s submission that the authorities do not support the proposition put by Roxton. Most recently, her Honour Judge Burchell considered this issue in Diamond Builders. In that case, Diamond argued that it was not a jurisdictional requirement that the work the subject of the payment claim pre-dates the relevance reference date. That argument was accepted in its entirety by the court, with Judge Burchell referring to the early authorities and stating:^[100]

I also accept Diamond’s submission that, even if the payment claim included work that occurred following the reference date, this inclusion would be permitted. In TFM, the Court of Appeal for New South Wales found that, in applying the principles of Southern Han, it is “untenable” to propose that “a payment claim which includes any amount which accrued after a reference date precludes the payment claim being made with respect to that reference date”. Further, in Hanson Construction Materials Pty Ltd v Brolton Group Pty Ltd, the Court of Appeal for New South Wales noted that, “there is no requirement in s 13 that the work in respect of which the payment claim is made must be performed before the claim is made.

121. Accordingly, this ground of Roxton’s defence fails.

MP Claim 4 - Invoice 2017

122. This was dated 3 July 2023^[101] and was for variations VO3 – VO6.
123. Roxton’s defence is that MP Claim 4 is invalid as it was issued on 3 July 2023, but the relevant reference date did not arise until 20 or 25 July 2023.
124. This submission is misconceived. Roxton’s suggested relevant reference date is based on a contention that the contract terms are Roxton’s Standard Terms (which would make the date 25 July 2023) or a date calculated in accordance with s9(b) of the Act (when the works were first performed on site - which would make the date 20 July 2023).
125. As discussed above, I do not accept that contention. The applicable reference date for these works is “upon completion.” As discussed above, the payment claim is to be read with the supporting documents referred to on its face. Variations VO3 – VO6 are referenced. Each of those variations has been exhibited by Mr Lai. Each is dated 20 June 2023 and states the works is completed. Each has been signed by Mr Siow and dated by him 20 June 2023, acknowledging the variation is valid and that the work is complete.
126. Accordingly Roxton’s defence to this claim fails.

Keilor Park:

127. There is no dispute that the prefabricated structural steel components and the precast concrete panels for Keilor Park Control Building and Canopy / Refuse Room works were delivered to site in stages, being on 15 May 2023 and 23 June 2023. The Control Building and Canopy/Refuse Room Works reached practical completion in stages on 15 May 2023 and 28 June 2023.^[102] Payment claims KP1 and KP2 were made for these works (details below).
128. There was one claimed variation to the Keilor Park agreement, Variation VO1 dated 20 June 2023, at a cost of $300.00. Samco alleges that this was at the request of Roxton.^[103] The total contract sum for Keilor Park including the variation was $305,600.00 plus GST.
129. Samco seeks to enforce three payment claims made for Keilor Park. Roxton objects to each claim on the basis of its version of the contract terms (similar to those above). However it also adds a further defence applicable to all three KP claims. It alleges that following the issuing of the payment claims, Samco removed the concrete panels and structural steel from the site. As a result Roxton has received no benefit for the performance of these works, and is entitled to rely on defences of unconscionable conduct under the Australian Consumer Law (which may be claimed by way of an equitable set-off or in isolation), estoppel in pais, and a total failure of consideration.
130. I will address Roxton’s “contractual terms” defences for each of the three claims in turn. I will then (at question 4 below) consider Roxton’s attempt to raise defences based on Samco’s alleged conduct in removing materials from site.

KP Claim 1 - Invoice 1970

131. This was dated 27 April 2023^[104] for a total of $91,590.00 excl GST. It stated:

(a) Upon Acceptance of quotation, Structural Steel (30% x $252,500) - $75,750.00;

(b) Upon Acceptance of quotation, 30% Precast Concrete Panels (30% x $52,800) - $15,840.00;

132. Roxton alleges that KP Claim 1 is invalid for the same reasons as MP Claim 2, namely that:

(a) The terms of the contract were Roxton’s Standard Terms, which did not allow Samco to claim a deposit. This payment claim is for two deposits and therefore does not comply with sections 10(1) and 11(1) of the Act, as it was not calculated in accordance with the terms of the contract. It therefore falls foul of s 14(1).

(b) Alternatively, Roxton submits that the claim was made before the first reference date arose (on the basis that it was the reference date agreed by Roxton’s Standard Terms, or a reference date which arose in accordance with s 9(b) of the Act).

133. For the same reasons as given for MP Claim 2, I do not accept Roxton’s defences to this payment claim. I have found that the terms of the contract are those set out in Samco’s quotation, and not Roxton’s Standard Terms. The terms of the quotation expressly provide that Samco may charge a deposit of 30% of the contract price. I have also found that the contract allows for a payment “Upon acceptance of quotation” (i.e. a deposit). The claim made in KP Claim 1 is calculated in accordance with the terms of the contract. Accordingly, the claim does comply with sections 10(1) and 11(1) of the Act.

KP Claim 2 - Invoice 1982

134. This was dated 15 May 2023^[105] and was for, “(u)pon Completion Precast panels (70% x $52,800) – $36,960.00 plus GST. This was in accordance with the terms of the contract which required payment of 30% of $52,800 upon delivery and the remaining 40% on completion.
135. Roxton contends that KP Claim 2 is invalid as it was issued on 15 May 2023, but the relevant reference date did not arise until 25 May 2023.
136. For the same reasons given in respect of MP Claims 3 and 4, I consider that this submission is misconceived. Roxton’s suggested relevant reference date is based on a contention that the contract terms are Roxton’s Standard Terms, which would make the date 25 May 2023. As discussed above, I do not accept that contention. I have found that the applicable reference date for these works is “upon completion” and this is the stage of the works claimed for in the payment claim. Accordingly this aspect of Roxton’s defence to this claim fails.

KP Claim 3 - Invoice 2019

137. This was dated 4 July 2023^[106] and was for the sum of $71,000.00 excl GST. The claim stated it was for:

(a) upon completion of the steel framing for control building (100% x 40% x $252,500) – a total of $70,700.00;

(b) completion of VO1 – panel prop pads - $300 plus GST.

138. Roxton submits that “(a)rguably, KP Claim 3 [made on 4 July 2023] was made in respect of a reference date that arose either on 23 or 25 June 2023.”^[107] No further details of this submission are given. For the reasons given above, I do not accept that the reference dates are those contended for by Roxton. Instead, Samco was entitled to make a payment claim referable to the completion stage of the project. This is what KP Claim 3 purports to do.

QUESTION 4 - KEILOR PARK DEFENCE BASED ON SUBSEQUENT EVENTS

139. Roxton’s second ground of defence, applicable to all Keilor Park claims, is that following completion of the works Samco allegedly damaged and/or removed the pre cast panels and unfixed steel from the site. Mr Nadinic alleges^[108] that on 15 September 2023 the plaintiff returned to the Keilor Park site and removed unfixed steel and two concrete panels from the site, damaging part of the works at that site. This evidence is based on the contents of an email which Roxton says it received from the principal’s superintendent.
140. Mr Nadinic further alleges^[109] that Samco returned to the site again on 22 October 2023 and removed more materials. This evidence is also based on the contents of an email which Roxton says it received from the principal’s superintendent. Mr Siow exhibited photographs taken by him when he visited the site on 23 October 2023 showing that all concrete panels and structural steel had been removed from the Site.^[110] One of the photographs taken by Mr Siow is of a makeshift placard with a hoodie bearing the logo of the plaintiff attached. Mr Siow deposes that this photograph shows, “the “calling card” left by the Plaintiff at the Site.”^[111]
141. Roxton submits that these events effectively mean that the works did not reach practical completion. Further, they have received no benefit from the performance of the works at the Keilor Park site because Samco have effectively removed the entirety of the works.^[112] Roxton says that the alleged stripping of the site is relevant to the following defences in relation to the Keilor Park Payment Claims:

(a) Unconscionable conduct under the Australian Consumer Law, claimed by way of an equitable set-off, or in isolation;

(b) Estoppel in pais;

(c) A total failure of Consideration.; and/or

(d) “Other potential defences”.^[113]

142. In response, Samco “rejects any suggestion that it has engaged in misconduct of any kind.”^[114]
143. Samco objects to the admissibility of evidence pertaining to the alleged events at the Keilor Park site on or after 15 September 2023 on the grounds that it is not relevant to any fact in issue in the application.^[115] The alleged events took place between two and five months after the work was performed and the claims were issued.
144. I agree with Samco that Roxton’s evidence of the events of 15 September and 22 October 2023 is not admissible in the present application.
145. It is well established that s16(4)(b)(ii) does not preclude a defendant raising defences which involve a consideration of the issue of whether the payment claim was properly served. Some of the authorities are referred to above (paragraphs 17- 20). For example, the decisions of Aalborg considered a respondent relying on estoppel; Bitannia allowed defences justified by the Trade Practices Act; and Emery, Marques Group and others found that a defence of misleading and deceptive conduct under the Australian Consumer Law was not precluded by the Act.
146. However, these defences involve a consideration of whether the plaintiff was entitled to make a payment claim at the time it was served. They all involve an assessment of the conduct of the claimant at the time it decided to issue the claim, not its conduct two to five months later. By way of example:

(a) In Aalborg, the question was whether by serving a payment claim by delivery to Aalborg’s registered office but not sending it by email (as was required by the contract), Ottoway was estopped by its conduct from asserting service and Ottoway had engaged in misleading conduct.

(b) In Bittania, the payment claim was not sent to the architect S & S Quirk (as was required by the contract) but was instead sent to Mr Brown, who was the general manager of a company associated with the proprietors. The questions included whether Bittania could raise a proposed cross-claim of misleading conduct in contravention of s 52 of the Trade Practices Act in defence of the application for judgment under the SOP Act.

(c) In Emery, the facts involved “an unfortunate incident involving fraudulent activity by a third party resulting in J. Hutchinson paying the sum of $431,454.57 to a bank account controlled by a third party or another person, in circumstances where the defendant intended to pay that amount to YVC”.^[116] J. Hutchinson sought to argue a defence arising out of a misleading or deceptive representation by YVC that its email security protocols were sufficiently robust to withstand infiltration, alternatively a defence of equitable set off arising out of the loss incurred by J. Hutchinson in paying the third party the sum of $431,454.57 due to YVC breaching a duty to J. Hutchinson to ensure that its email protocols were sufficiently robust so as to withstand infiltration.

(d) In Marques Group, the contractor contended that the subcontractor engaged in misleading and deceptive conduct at the time it issued its payment claims by representing that all employees and subcontractors had been paid for work done in the period covered by the payment claim and the subcontractor was paying its debts as and when they fell due. These representations were relied on by the principal in preparing its payment schedules, but later alleged them to be false.

147. As can be seen from the above examples, the conduct in question is connected to the service of the payment claims, not in relation to the performance or failure to perform under the construction contract. As her Honour Judge Burchell noted in Emery:^[117]

Those cases have claimed misleading and deceptive conduct only in relation to the manner in which the plaintiffs perform their obligations under the Act (or its interstate equivalents), such as how they have served payment claims on the defendants, not in relation to performance or failure to perform under the construction contract.

148. In the present case, the alleged conduct occurred months after the claims were served.
149. I agree there is a live issue as to who removed the materials from site. Samco has not yet filed any evidence on this point, but has made submissions disputing their involvement. At present, the evidence at best is second or third hand and is hearsay, being from the superintendent of the principal; or is speculative, being Mr Siow’s conclusion based on a photograph. This is a matter that will need to be determined at trial, after defences have been filed and evidence given and tested.
150. The SOP Act regime does not finally determine these questions. Instead, as has often been said, it provides a mechanism of pay now and argue later. In my view, conduct alleged to have occurred two to five months after the payment claims were issued is not relevant to a consideration of whether the payment claim was properly served. This is especially so when there is no evidence that such conduct was even being contemplated two months before it happened (if it did).
151. For those reasons, it is not appropriate for me to address each of the proposed defences relied on by Roxton. I note that each party made submissions on each of these issues, but these will be matters for the ultimate trial of the proceeding, should Roxton choose to bring a cross claim.

CONCLUSION – ANSWERS TO QUESTIONS

152. For the reasons above, my answers to each of the questions posed by the parties is as follows:

(a) What are the terms of the contracts?

The terms set out in the quotations issued by Samco, which were accepted by the responses of Mr Siow for Roxton, constitute the agreement between the parties. Roxton’s Standard Terms are not incorporated to the contract.

(b) What are the Reference Dates?

In each of the three contracts the reference dates are as follows:

1st reference date 30% upon acceptance of quotation

2nd reference date 30% prior to delivery

3rd reference date 40% on completion.

(c) Was each Payment Claim valid within the meaning of s 14(2) of the SOP Act?

Yes

(d) Were the Payment Claims validly served?

Yes

(e) Did any Payment Claim contain any excluded amounts such as variations?

No

(f) Is the evidence in relation to the alleged events of 15 September 2023 and 22 October 2023 at the Keilor Park site admissible?

No.

153. Accordingly there will be judgment for Samco on its summons on originating motion.

Interest

154. Roxton seeks to make submissions on interest after a determination on the substantive issues is handed down.
155. Samco seeks an order for interest in accordance with s 12(2) of the SOP Act. As no interest rate is specified under each construction contract, s 12(2)(a) applies, which provides the applicable rate is the rate fixed pursuant to s 2 of the Penalty Interest Rates Act 1983 (Vic), currently 10%.
156. I will give leave to Roxton to make any submission as to why an order should not be made in accordance with this subsection. The plaintiff may file interest calculations to the date of this order.

Costs

157. Samco seeks an order that Roxton pay its costs of this application on an indemnity basis, alternatively on a standard basis, and has filed a written submission. Roxton seeks to heard on costs. I will give Roxton leave to file a written submission in opposition to Samco’s application and will determine the question on the papers
158. The parties should file the orders they propose to give effect to these Reasons.

- - -

Certificate

I certify that these 46 pages are a true copy of the judgment of her Honour Judge Kirton delivered on 31 May 2024.

Dated: 31 May 2024

Jessica Meaney
Associate to Her Honour Judge Kirton

---

^[1] By summons on originating motion dated 27 September 2023.

^[2] See for example, 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674 [39]–[54]; SJ Higgins v The Bays Healthcare Group Inc [2018] VCC 805 [26] and Drake Constructions Vic Pty Ltd v Three Construct Group Pty Ltd [2023] VCC 1325, 30.

^[3] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449-450 (per Mason CJ, Brennan, Deane and Gaudron JJ).

^[4] 3D Flow Solutions Pty Ltd v LTP Armstrong Creek Pty Ltd [2018] VCC 674, 52.

^[5] Building and Construction Industry Security of Payment Act 2002 (Vic) s4 (‘SOP Act’).

^[6] SOP Act (n 5) s 5.

^[7] Ibid s 7.

^[8] Ibid.

^[9] [2023] VCC 1527, 27 – 40 & 41 (‘Diamond Builders’).

^[10] Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103, [54] citing Hawkins Construction (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136, [20].

^[11] Multiplex Constructions [2003] NSWSC 1140, [76].

^[12] [2010] VCS 106.

^[13] Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VCS 106, 17 [51].

^[14] SOP Act (n 5) s 9(1).

^[15] Ibid.

^[16] Ibid 14(4).

^[17] Ibid s15(1).

^[18] Ibid 15(4)(b)(i).

^[19] Ibid 15(4)(b)(ii).

^[20] Ibid 15(4).

^[21] Ibid s 16(2).

^[22] Ibid s16(1)

^[23] Diamond Builders (n 9) 39 - 40.

24. ^[24] [2017] SASCFC 158, 60.

^[25] [2006] NSWCA 238.

^[26] Ibid, 10 (per Hodgson JA).

^[27] Ibid, 96 (per Basten JA with Hodgson & Tobias JJA agreeing).

^[28] [2021] VCC 1019, 16-17 [72].

^[29] Ibid, 73.

^[30] [2023] NSWSC 625.

^[31] [2010] QCA 119; [2011] 2 Qd R 114.

^[32] [2008] VCC 1491.

^[33] Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44, [44], [120].

^[34] Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570, [41]-[42].

^[35] Per Vickery J in Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, [51] (emphasis added).

^[36] Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153, [25] – [26].

^[37] See for example, South City Plaster Ply Ltd v Modscape Pty Ltd [2018] VCC 1576, [91].

^[38] Balmain New Ferry Co Ltd v Robertson [1906] UKPCHCA 4; (1906) 4 CLR 356.

^[39] [1998] 4 VR 559.

^[40] Ibid, 567.

^[41] Ibid.

^[42] Ibid, 561.

^[43] [2020] VCC 1674, [71].

^[44] Ibid, [69].

^[45] Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153, [27].

^[46] Affidavit of Su Chung Lai, sworn 17October 2323, 1 [4] – [5] (Third Lai Affidavit).

^[47] Affidavit of Su Chung Lai, sworn 27 September 2023, Exhibit JL1, 38 (First Lai Affidavit).

^[48] First Lai Affidavit, Exhibit JL1, 39.

^[49] First Lai Affidavit, 5 [22]; Third Lai Affidavit, 2 [8].

^[50] First Lai Affidavit, Exhibit JL1, 40.

^[51] Affidavit of Frank Nadinic sworn 13 October 2023, Exhibit FN 1, 10 (First Nadinic Affidavit).

^[52] Third Lai Affidavit, 3 [10].

^[53] Ibid [11].

^[54] Affidavit of Frank Nadinic, sworn 19 October 2023, Exhibit FN3, 4 (Third Nadinic Affidavit).

^[55] Affidavit of Ricky Siow, sworn 2 November 2023.

^[56] Third Lai Affidavit, 1 – 2 [4] – [5].

^[57] First Lai Affidavit, Exhibit JL1, 25.

^[58] First Lai Affidavit, Exhibit JL1, 26.

^[59] First Lai Affidavit, Exhibit JL1, 27.

^[60] Ibid.

^[61] Third Lai Affidavit, Exhibit JL2, 119.

^[62] Third Lai Affidavit, 4, [16] – [19].

^[63] Third Lai Affidavit, 1 -2, [4] [5].

^[64] First Lai Affidavit, Exhibit JL1, 54.

^[65] First Lai Affidavit, Exhibit JL1, 55.

^[66] Third Lai Affidavit, Exhibit JL2, 8.

^[67] Third Lai Affidavit, 4[16] – [19].

^[68] Defendant’s submissions in reply, 22 November 2023, 4 [15].

^[69] Third Lai Affidavit, 2 – 3 [7] & [13].

^[70] Defendant’s submissions in reply, 22 November 2023, 2 [7].

^[71] [2023] VCAT 916.

^[72] Ibid [32] – [34].

^[73] See for example, Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence [2016] HCA 52; (2016) 260 CLR 340.

^[74] See for example, Castle Construction Pty Ltd v N & R Younis Plumbing Pty Ltd [2019] NSWSC 225.

^[75] Affidavit of Su Chung Lai, sworn 6 October 2023, 3 [11] (Second Lai Affidavit).

^[76] First Lai Affidavit, Exhibit JL1, 34.

^[77] Ibid, Exhibit JL1, 42.

^[78] Ibid, Exhibit JL1, 43.

^[79] Ibid, Exhibit JL1, 46.

^[80] First Lai Affidavit, Exhibit JL1, 48.

^[81] Affidavit of Frank Nadinic, sworn 13 October 2023, 3 [21] (First Nadinic affidavit).

^[82] First Lai Affidavit, 5 [24].

^[83] First Lai Affidavit, Exhibit JL1, 45.

^[84] Per Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44, [44]; Façade Designs International Pty Ltd v Yuanda Vic Pty Ltd [2020] VSC 570, [41].

^[85] First Lai Affidavit, Exhibit JL1, 50.

^[86] Ibid, 52.

^[87] Second Lai Affidavit, 2 [5], [7].

^[88] First Lai Affidavit, Exhibit JL1, 34.

^[89] Ibid.

^[90] Ibid, Exhibit JL1, 28.

^[91] Ibid, Exhibit JL1, 29.

^[92] Ibid, Exhibit JL1, 30.

^[93] Ibid, Exhibit JL1, 31.

^[94] First Lai Affidavit, Exhibit JL1, 32.

^[95] First Lai Affidavit, Exhibit JL1, 34.

^[96] Defendant’s Submissions, 16 October 2023, 3 [10(b)].

^[97] First Lai Affidavit, 3 [10].

^[98] Defendant’s reply submissions, 22 November 2023, 9, [51].

^[99] [2015] VSC 426, 21-22 [101]-[102].

^[100] Diamond Builders (n 9), 14 [65] (emphasis added and citations omitted).

^[101] First Lai Affidavit, Exhibit JL1, 36.

^[102] Second Lai Affidavit, 4 [14].

^[103] First Lai Affidavit, Exhibit JL1, 56.

^[104] First Lai Affidavit, Exhibit JL1, 57.

^[105] First Lai Affidavit, Exhibit JL1, 59.

^[106] Ibid, Exhibit JL1, 61.

^[107] Defendant Submissions, 16 October 2023, 6 [24].

^[108] First Nadinic Affidavit, 1 [4].

^[109] Affidavit of Frank Nadinic, sworn 2 November 2023, Exhibit FN 3, 4.

^[110] Affidavit of Ricky Siow, sworn 2 November 2023, Exhibit RS 1.

^[111] Ibid, 1 [7].

^[112] Defendant’s submissions, 16 October 2023, 5 [23]; Defendant’s submissions in reply, 22 November 2023, 9-10 [52] – [57].

^[113] Defendant’s submissions in reply, 22 November 2023, 12 [72].

^[114] Plaintiff’s written submissions, 3 November 2023, 14 [64].

^[115] Plaintiff’s written submissions, 3 November 2023, 14 [60]; Plaintiff’s Objections to evidence, 18 October 2023, 1.

^[116] Emery t/as Yarra Valley Commercial v J. Hutchinson Pty Ltd [2021] VCC 1019, 3 - 4 [20].

^[117] Ibid, 17 [73] (emphasis added).