Case Scenario Facts Davey Construction Pty Ltd (Davey), the contractor, successfully tenders for the construction of a mixed retail/commercial development called 'Sapphire Tower' in the Adelaide City Centre. The head contract between Davey and the principal, Sapphire Developments Ltd (Sapphire), is formed using the AS 4000 General Conditions of Contract (with amendments) in the lump sum amount of $6,727,872 (excl GST) broken down as follows: BoQ Value Preliminaries $626,250 Groundworks $360,000 Concrete $788,889 Masonry $470,000 Structural Steel $147,778 Metalwork $188,000 Carpentry $256,250 Partitions $290,667 Roofing $97,895 Suspended Ceilings $218,182 Doors $108,571 Finishes $516,667 Painting $104,000 Hydraulics $227,692 Drainage $158,333 Electrical Installations $443,077 Mechanical Installations $608,571 Exterior Elements $276,000 Total BoQ Value $5,886,822 Plus Provisional Sums for: Windows & Curtain Walling $425,000 Hardware $38,000 Lift Installation $338,000 Profit & Attendance on provisional sums $40,050Relevant amendments to the contract conditions include: 7 Service of notices Unless provided otherwise elsewhere in the Contract, a notice includes any document transmittal, request, consent, approval, direction or other communication under or for the purposes of the Contract. This clause also applies to any notices served under the Building and Construction Industry Security of Payment Act. To be valid, a notice under the Contract must be delivered by hand, by courier, by pre-paid post, email or by facsimile, addressed to the other party at the postal address, email address or facsimile address described in Annexure Part A (if any) or last communicated in writing to the person giving the notice. A notice shall be deemed to have been given and received if: a) delivered in person, when delivered; b) sent by pre-paid post to an address within Australia, two (2) Business Days after the date of posting; c) sent by facsimile, on the day and at the time indicated in the transmission report issued by the facsimile machine at the conclusion of successful transmission; and d) sent by email, on the day and at the time indicated in the sender's computer provided that the sender does not receive a message indicating that the e-mail has not been received. If, however, the result of a) to d) above is that a notice would be taken to be given or made on a day that is not a business day, or is later than 4.00pm (local time), it will be taken to have been given or made at the commencement of business on the next business day. 37.1 Progress claims The Contractor shall claim progressively at the times stated in Item 28. An early progress claim shall be deemed to have been made on the date for making that claim. Each progress claim shall be given in writing to the Superintendent, provide evidence of the amount due to the Contractor and shall include: a) details of the value of WUC done to the time stated in Item 28 together with details of other moneys then due to the Contractor pursuant to the provisions of the Contract; b) the total gross value of WUC previously scheduled; the amount of the contract sum being claimed by the Contractor; d) an itemised schedule of variations; and such other information as the Contract may require or which the Superintendent may reasonably require. For the purposes of the Building and Construction Industry Security of Payment Act, the Superintendent acts as agent of the Principal in regard to receipt of the Contractor's payment claim or a final payment claim. 37.2 Payment SchedulesThe Superintendent shall, within 15 business days after receiving such a progress claim (pursuant to subclause 37.1), issue to the Principal and Contractor a payment schedule. Unless expressly stated otherwise, a payment schedule or final payment schedule which is: i) issued and delivered pursuant to the Contract; and ii) compliant with the Building and Construction Industry Security of Payment Act. is a payment schedule for the purposes of the Building and Construction Industry Security of Payment Act. The payment schedule shall set out the calculations used by the Superintendent to value the amount of the payment which evidences the Superintendent's opinion of the moneys due from the Principal to the Contractor, or from the Contractor to the Principal, as the case may be. The payment schedule shall identify the progress claim submitted by the Contractor to which it relates, and shall include: a) the total gross value of the work carried out under the Contract by the Contractor as at the date of the progress claim; b) the total gross value of the work carried out under the Contract by the Contractor scheduled in the previous payment schedule; c) the value deducted for work claimed but which, in the Superintendent's opinion, has either not been carried out or is defective; d) any amounts the Principal is entitled to deduct, withhold or set off pursuant to the Contract; e) any amounts otherwise due from the Principal to the Contractor, or from the Contractor to the Principal, arising out of or in connection with the Contract; and f) the reasons for any difference between the amount of the payment schedule and the amount claimed in the Contractor's progress claim. For the purposes of the Building and Construction Industry Security of Payment Act, the Superintendent acts as agent of the Principal in regard to the issue of a payment schedule. 37.2A Payment The Principal shall within 21 days after receiving the payment schedule pay to the Contractor the amount shown in the payment schedule as due to the Contractor. If the payment schedule shows an amount due from the Contractor to the Principal, the Contractor shall pay such an amount within 7 days after receiving the payment schedule. Neither a payment schedule nor a payment of moneys shall be evidence that the subject WUC has been carried out satisfactorily. Payment other than final payment shall be payment on account only.Relevant contract particulars in Annexure Part A of the contract are as follows: Item 12 states "5%" Item 13 a) states "retention moneys" Items 13 c) states '5%' Item 13 e) states "unconditional performance for full amount of unfixed plant and materials" Item 28 a) states "28th day of each month for WUC done to the 27th day of that month" Item 29 lists "Carpentry and Metalwork" Item 30 states "5% per annum" The work under the contract (WUC) is approaching the end of its eighth month and, on 28 September 2021, Davey's contract administrator emails Progress Claim No.8 (shown below) to the superintendent. The email is received and opened by the superintendent at 2pm on 28 September 2021.28 September 2021 To: Primo Architects Pty Ltd (Superintendent), 8 Lipton Terrace, Adelaide, SA 5000 Project: Sapphire Tower, Angas Street, Adelaide Progress Claim No. 8 value: $705, 898 (incl GST). Pursuant to subclause 37.1, Davey Construction Pty Lid (the Contractor) claims payment for the value of work done during the period 28 August 2021 to 27 September 2021. In support of the progress claim, supporting calculations are attached. Brenda Lee, Senior Contract Administrator Davey Construction Pty Ltd Estimated %%age Value of work BQ Work complete complete to date Preliminaries 80% $501,000 Groundworks 100% $360,000 Concrete 90% $710,000 Masonry 85% 5399,500 Structural Steel 90% $133,000 Metalwork 75% 5141,000 Carpentry 80% $205,000 Partitions 75% $218,000 Roofing 95% $93,000 Suspended Ceilings 55% $120,000 Doors 35% $38,000 Finishes 30% $155,000 Painting 50% $52,000 Hydraulics 65% $148,000 Drainage 60% $95,000 Electrical Installations 65% $288,000 Mechanical Installations 70% $426,000 Exterior Elements 25% $69,000 Total BQ work to date $4,151,500 Work related to provisional sums Windows & Curtain Walling $315,000 Hardware $9,500 Lift installation $51,000 Total carried out by subcontractors $375,500 Add percentage for profit and attendance (5%%) $18,775 Total work carried out against provisional sums $394,275 Unfixed plant and materials Masonry (on site) $35,000 Carpentry (on site) $42,000 Metalwork (off site) $52,000 Total unfixed plant and materials $129,000 Amount of the contract sum claimed to date $4,674,775Variations V1 Additional Excavation $21,000 V2 Thickening of concrete slab 512,000 V3 Increase size of steel columns $15,000 V4 Change in brick type $8,000 V5 Extra partitions to shop units $10,000 V6 Upgrade doors $6,000 V7 Change floor tiles to lobby -$6,000 Total variations work done $66,000 Other amounts due under the contract Latent condition (groundwater) - deemed variation $36,000 Actual trench excavation quantity greater than BQ quantity $12,000 Extra concrete testing $8,800 Total otheramounts due under the contract $56,800 Value of work carried out to date $4,797,575 Less value of work previously scheduled $4,122,075 Value of work this claim $675,500 Less retention moneys this claim (5%) $33,775 Progress claim amount (excl. GST) $641,725 GST $64,173 Progress claim amount (incl. GST) $705,898 This is a Payment Claim made under the Building and Construction Industry Security of Payment Act 2009 (SA)