A J Portelli Medical Pty Ltd atf A J Portelli Medical Trust v Black Sheep Building Pty Ltd 

2026/00004922

BUILDING AND CONSTRUCTION – the applicant seeks leave to appeal from a decision of Peden J ordering that summary judgment be entered in favour of Black Sheep, the respondent. The dispute arose from a $14 million construction contract for specialist high physical support accommodation in Gosford. The respondent (as the builder) issued two payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) but the applicant did not issue any payment schedules in response. The respondent brought proceedings to recover the unpaid amounts as statutory debts. Peden J held that both payment claims (i) expressly invoked SOPA, (ii) adequately identified the construction work by reference to the bill of quantities, and (iii) were served within the time permitted by ss 13(1A) and (1 B). Her Honour found that the development, namely, shared high support disability accommodation with individual ensuite bedrooms and shared kitchen and living spaces, did not constitute a "self-contained unit" and therefore not a "dwelling" requiring insurance under the Home Building Act 1989 (NSW). The respondent was therefore not barred from making payment claims. As no payment schedules were served, the applicant was liable for the claimed amounts under s 15 of SOPA, together with interest under s 11 (2). The respondent was therefore entitled to summary judgment. The applicant seeks leave to appeal against her Honour's orders in two respects. The first is by arguing that the respondent did not validly serve payment claims under s 13 because its payment claims were premature under s 13(1A) and that (1 B) is inapplicable. The second is by arguing that the respondent was not entitled to issue payment claims due to s 8(2)(b) which results in the respondent being in contravention of s 92 of the Home Building Act by having carried out "residential building work" without the requisite insurance.

Black Sheep Building Pty Ltd v A J Portelli Medical Pty Ltd atf A J Portelli Medical Trust [2025] NSWSC 1472