By contrast, the Security of Payment legislation entitles a claimant to recover the amount of its claim in Court proceedings (where the respondent did not provide a payment schedule) or the scheduled amount (where the respondent provided a payment schedule but did not pay the scheduled amount), or the unpaid amount of an adjudication certificate, and prohibits a respondent from bringing cross claims or raising defences in these proceedings.
This inconsistency gives rise to the constitutional question.
In making this decision, the New South Wales Court decided that the Victorian Court of Appeal’s decision in in the context of the Victorian Court’s decision in Façade, and provide our insights on where this leaves respondents to Security of Payment claims by claimants in liquidation in New South Wales and Victoria.
As we will explain, we believe that respondents are in a stronger position than a quick reading of , the subcontractor claimant in liquidation (Ostwald) served payment claims on the contractor respondent (Seymour Whyte).
Only the balance after the set off is admissible to proof against the company, or payable to the company.