No Schedule, No Defence: The Cost of Ignoring a Payment Claim

A J Portelli Medical Pty Ltd (ACN 669 583 475) ATF A J Portelli Medical Trust v Black Sheep Building Pty Ltd (ACN 665 735 197) [2026] NSWCA 99 4

FACTS

Portelli engaged Black Sheep to design and build “high physical support” accommodation at Gosford.

Black Sheep served payment claims on Portelli claiming a total of approx. $3.5m. Portelli did not provide a payment schedule and did not pay the claims.

Black Sheep then issued proceedings under sections 14 and 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW)(the Act) to recover the unpaid amount.

The Court at first instance found that the payment claim complied with the definition set out in section 13(2) of the Act and so was a valid claim. Dismissing the other arguments made by Portelli, the Court consequently ordered Portelli to pay the claimed amount plus interest.

Portelli appealed submitting that, among other things, there is no liability to pay a claim unless it is established as an objective fact that the construction work was carried out within the relevant period.

ISSUE

For a payment claim to be valid under the Act, is it necessary for a claimant not only to claim payment for work, but to show that the work was in fact carried out?

FINDING…