The case of Rodrigues v CustomOz Services Pty Ltd [2023] NSWSC 379 involved a dispute between the builder (CustomOz) and two home-owner principals (Rodrigues), in respect of a particular payment claim.

Two contracts were signed in respect of the works conducted on the Rodrigues’ home and when a dispute arose, the matter was referred to adjudication, with the parties agreeing to delay the dispute process by 7 days; however even with the additional time, no payment schedules were received within the contractual timeframe or the timeframe allowable by Security of Payment Legislation.

A ‘without prejudice’ offer was provided in the timeframe and the Rodrigues argued that the offer was:

a. Not actually privileged; and,
b. Constituted a payment schedule.


Whether the without prejudice offer could be a payment schedule?


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