Valeo Construction v Pentas [2018] VSC 243
FACTS
Valeo Construction Pty Ltd (the Plaintiff) and Pentas Property Investments Pty Ltd (the Defendant) entered into a contract whereby the Plaintiff would construct a five-storey residential apartment building, with two levels of basement car-parking and some commercial tenancies at 178 Victoria Avenue, Albert Park (the site) in Victoria, for a total sum of $18,490,170.00 (exclusive of GST).
Pursuant to the Contract, the plaintiff was entitled to make claims for payment under s.9 of the Building and Construction Security of Payment Act (2002) Vic (the Act) on the fifteenth day of each month, by serving a payment claim on the superintendent. The parties then agreed to modify this orally, and it became the thirteenth of the month.
The plaintiff sent a payment claim #45 for the total sum of $2,215,150.03 to the defendant and the superintendent.
The payment claim was then revised, resulting in a $25,000 increase, totalling $2,215,150.03 and was emailed to the defendant on 1 March 2018
ISSUES
• Validity of the Revised Progress Claim pursuant to s.14 of the Act
• Whether s.14 of the Act is silent on the revision, or withdrawal and replacement, of a payment claim – allowing subsequent rectification.
• Whether a revised progress claim, effected service of a valid progress claim which revised or updated or withdraw or replaced or effected a reasonable correction to the original claim or when read with the original claim constituted one in the same payment claim as with the original progress claim
FINDING
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