Energy Plant Solutions Limited v Thermal Protection Services Limited

[2025] NZHC 2849

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-61

[2025] NZHC 2849

BETWEEN

ENERGY PLANT SOLUTIONS LIMITED

Applicant

AND

THERMAL PROTECTION SERVICES LIMITED

Respondent

Hearing:

22 May 2025

Counsel:

D Sheppard for the Applicant

KA Lomas and JM Perry for the Respondent

Judgment:

30 September 2025

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 30 September 2025 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Braun, Bond & Lomas Limited, Hamilton Cooper Rapley Lawyers, Palmerston North

ENERGY PLANT SOLUTIONS LTD v THERMAL PROTECTION SERVICES LTD [2025] NZHC 2849 [30

September 2025]

Introduction

[1]    Energy Plant Solutions Limited (EPS) applies for an order setting aside a statutory demand served on it by Thermal Protection Services Limited (TPS) for

$425,519.00.

[2]    EPS engaged TPS as a subcontractor to complete insulation works on a biomass-fired boiler at a plant in Tokoroa.

[3]    Issues arose which led TPS to write to EPS on 23 May 2024 advising that TPS would not be completing part of the works as the scope of the project had changed from the original pricing.

[4]    Following correspondence between the parties’ solicitors, TPS issued a payment claim on 1 October 2024 for $387,105.38 which was its calculation of the total amount owing for the works completed (October Claim). EPS responded by letter on 11 October 2024 claiming the works carried out by TPS were defective and that EPS had an unquantified counterclaim, such that EPS “had no obligation to make any payment to [TPS] whatsoever”.

[5]    On 22 November 2024, TPS issued a further payment claim for $397,567.42 (November Claim). EPS did not respond to the November claim. This led to the issue of the statutory demand by TPS, relying on s 23 of the Construction Contracts Act 2002 (CCA). This section provides that failure to respond to a payment claim with a payment schedule means the amount claimed in the payment claim is recoverable as a debt due.

[6]EPS seeks to argue that:

(a)the October Claim was a valid payment claim under the CCA which triggered obligations on EPS to respond;

(b)the letter of 11 October 2024 issued by EPS’s lawyers in response was a valid payment schedule for the purposes of the CCA;

(c)TPS was not entitled to resend the payment claim as the November Claim; and

(d)EPS was therefore not required to respond to the November Claim with a payment schedule.

[7]    Essentially EPS submits that a claimed amount that has already been the subject of dispute in a previous payment schedule does not become a debt due and recoverable through the Court if the payment claim is simply resent and the respondent does not provide a payment schedule in response. EPS submits that rather than it owing TPS money, EPS has a claim for $664,419.02 (excluding GST) against TPS for the losses and costs that TPS has caused as a result of TPS’s alleged defaults.

[8]    TPS submits that the case turns on whether EPS was required to issue a payment schedule complying with s 21 of the CCA in response to the November Claim. TPS contends:

(a)The issue of whether the October Claim was a valid payment claim and therefore whether EPS’s response (the purported Payment Schedule) was a valid payment schedule, is irrelevant.

(b)There is no prohibition on a party from issuing a subsequent payment claim for the same work.

(c)EPS failed to issue a payment schedule (or respond at all) to the November Claim. EPS is therefore liable to pay the claimed amount pursuant to sections 22 and 23 of the CCA.

[9]    TPS says further that if TPS was entitled to issue the November Claim, all other issues become moot because:

(a)it is settled law that every payment claim requires a payment schedule to be issued in response; and

(b)it is common ground that EPS did not issue a payment schedule in response to the November Claim.

Issues

[10]   I set out the principles applying to applications to set aside a statutory demand in the context of the CCA below before considering the following issues:

(a)Is it reasonably arguable that the November Claim is not a valid payment claim?

(b)If not, can the applicant rely on the 11 October 2024 payment schedule to set aside the statutory demand?

(c)Is there any other basis on which the demand ought to be set aside?

Application to set aside – legal principles

[11]   A creditor may serve a statutory demand on a company in respect of any debt owed that is not less than the current prescribed amount of $1,000.00.1 A company served with a statutory demand may apply to the Court to set it aside but must do so within 10 working days of service.2

[12]Section 290(4) of the Companies Act 1993 provides:

(4)The court may grant an application to set aside a statutory demand if it is satisfied that—

(a)there is a substantial dispute whether or not the debt is owing or is due; or

(b)the company appears to have a counterclaim, set-off, or cross- demand and the amount specified in the demand less the amount of the counterclaim, set-off, or cross-demand is less than the prescribed amount; or

(c)the demand ought to be set aside on other grounds.

[13]   The Court of Appeal confirmed the principles a court should apply when exercising the s 290(4) discretion in Confident Trustee Ltd v Garden and Trees Ltd:3

[16]The general principles under s 290(4) are well settled:

1      Companies Act 1993, s 289(2)(a); Companies Act 1993 Liquidation Regulations 1994, reg 5.

2      Section 290(2).

3      Confident Trustee Ltd v Garden and Trees Ltd [2017] NZCA 578 (footnote omitted).

(a)The onus is on the applicant seeking to set aside the statutory demand to show that there is arguably a genuine and substantial dispute as to the existence of the debt. The Court’s task is not to resolve the dispute but to determine whether there is a substantial dispute that the debt is due.

(b)The mere assertion that a dispute exists is not sufficient. Material short of proof is required to support the claim that the debt is disputed.

(c)If such material is available, the dispute should normally be resolved first in ordinary civil proceedings before any statutory demand is issued.

(d)If a counterclaim, cross-demand or set-off is suggested an applicant must establish that this is reasonably arguable in all the circumstances.

(e)It is not usually possible to resolve disputed questions of fact on affidavit evidence alone, particularly when issues of credibility arise unless such evidence is contrary to the available documents or earlier statements made by the parties.

CCA overlay

[14]   As the statutory demand issued is for an amount said to be owing pursuant to a payment claim under a construction contract, the demand must be considered in the context of the provisions of the CCA.

[15]   The first point is that s 79 of the CCA provides that when seeking to recover an amount claimed as a debt due under the CCA (including under s 23) the party responding to the demand may not rely on any counterclaim, set-off or cross-demand unless “judgment has been entered for that amount” or “there is not in fact any dispute between the parties in relation to the claim for that amount”. The Court of Appeal confirmed in Laywood v Holmes Construction Wellington Ltd that s 79 applies to proceedings to set aside statutory demands, and that any other interpretation undermines the “pay now, argue later” regime in the CCA.4

[16]   The only paragraphs of s 290(4) of the Companies Act that can be relied on for setting aside a statutory demand served under s 23 of the CCA are therefore paras (a) and (c).

4      Laywood v Holmes Construction Wellington Ltd [2009] NZCA 35, [2009] 2 NZLR 243 at [63]– [64].

[17]   Secondly, when considering the requirements for payment claims and payment schedules, the Court of Appeal held in Demasol Ltd v South Pacific Industrial Ltd, by reference to that Court’s earlier decision, George Developments Ltd v Canam Construction Ltd, that:5

… any analysis of the CCA “must be undertaken with the purpose of the Act in mind” and that a “technocratic” or “formalistic” interpretation would undercut Parliament’s intent that cashflow in the construction industry be maintained.

[18]The purpose of the CCA is as follows:

3        Purpose

The purpose of this Act is to reform the law relating to construction contracts and, in particular,—

(a)to facilitate regular and timely payments between the parties to a construction contract; and

(b)to provide for the speedy resolution of disputes arising under a construction contract; and

(c)to provide remedies for the recovery of payments under a construction contract.

[19]   Part 2 of the CCA deals with payments under construction contracts. The procedure for making and responding to payment claims is set out in subpart 3 of pt 2. It begins at s 19 with an interpretation section which includes a definition for “claimed amount” as “an amount of a payment, specified in a payment claim, that the payee claims to be due”.

[20]The requirements for payment claims are set out in s 20 of the CCA:

20 Payment claims

(1)A payee may serve a payment claim on the payer for a payment,—

(a)if the contract provides for the matter, at the end of the relevant period that is specified in, or is determined in accordance with the terms of, the contract; or

(b)if the contract does not provide for the matter in the case of a progress payment, at the end of the relevant period referred to in section 17(2); or

5      Demasol Ltd v South Pacific Industrial Ltd [2022] NZCA 480 at [31], citing George Developments Ltd v Canam Construction Ltd [2006] 1 NZLR 177 (CA) at [41] and [52].

(c)if the contract does not provide for the matter in the case of a single payment expressly agreed under section 14(1)(a), following the completion of all of the construction work to which the contract relates.

1. A payment claim must—

(a)be in writing; and

(b)contain sufficient details to identify the construction contract to which the payment relates; and

(c)identify the construction work and the relevant period to which the payment relates; and

(d)state a claimed amount and the due date for payment; and

(e)indicate the manner in which the payee calculated the claimed amount; and

(f)state that it is made under this Act.

(3)A payment claim must be accompanied by—

(a)an outline of the process for responding to that claim; and

(b)an explanation of the consequences of—

(i)not responding to a payment claim; and

(ii)not paying the claimed amount, or the scheduled amount, in full (whichever is applicable).

(4)The matters referred to in subsection (3)(a) and (b) must—

(a)be in writing; and

(b)be in the prescribed form (if any).

[21]   Section 21 then sets out the requirements for responding to a payment claim by issuing a payment schedule. These requirements include that the payment schedule must be in writing, identify the payment claim to which it relates and state a scheduled amount.6 If the scheduled amount is less than the claimed amount, the manner in which the scheduled amount was calculated and the reasons for the difference, or for withholding payment, must be indicated in the payment schedule.

[22]   If a payment schedule is not issued, s 22 provides that the payer becomes liable to pay the claimed amount.

6      “Scheduled amount” is defined as the amount the payer proposes to pay in response to the payment claim: CCA, s 19.

[23]   Section 23 then sets out the consequences if the claimed amount is not paid. These are that the payee may recover the unpaid portion of the claimed amount as a debt due. One of the methods of doing so is by issuing a statutory demand.

Was the November Claim a valid payment claim?

[24]   Before considering this question, I set out a chronology to assist in understanding the sequence of events.

Chronology

[25]   Following TPS’s advice on 23 May 2024 that it would only complete part of the works, as mentioned in the introduction, TPS further clarified what works it would complete by letter on 24 May 2024.

[26]   EPS responded by letter on 28 May 2024 asserting that there was no basis for TPS not completing the contract works as TPS had access to all the information necessary to accurately plan and execute the insulation and cladding work. EPS stated that it would suffer significant damage as a result of TPS’s inability to complete the works. EPS reserved its rights, including to terminate the contract immediately and to set off EPS’s damages against payments due to TPS. In addition, EPS sought to put in place an arrangement where TPS would commit to completing certain tasks with

$35,000 withheld from each of the April and May payments but lodged in their solicitors’ trust account to give TPS assurance the amount had been set aside, to allow TPS to rectify what EPS described as TPS’s “performance issues.”

[27]   TPS did not agree, asserting by letter dated 30 May 2024 that money could not be withheld for work that had been completed. In the absence of a response on payments, TPS withdrew from the job on 12 June 2024 until resolution.

[28]   I note that Michael Browne’s evidence in reply for EPS is that when TPS gave notice that it would not be completing the works, payment of two invoices totalling approximately $63,000 was “pulled from that payment batch”.

[29]   Correspondence between solicitors continued until 1 October 2024 when, together with a letter from new solicitors, TPS issued the October Claim for

$387,105.38. The October Claim was for four outstanding invoices (including the two invoices referred to above) plus two variations, one for consumables of approximately

$3,000 and the other for “Additional labour and related costs incurred outside of quoted amount,” amounting to $141,164.89 (EPS contends that this should never have been claimed as these costs were included in TPS’s quote).

[30]   On 11 October 2024, EPS’s solicitors sent a letter in response to TPS’s October Claim, on which EPS relies as its payment schedule. The letter did not refer expressly to the October Claim as a “payment claim”, instead referring to “your earlier correspondence setting out in more detail your client’s claim against our client”. The letter then set out EPS’s response as follows:

For all the reasons set out in our previous correspondence, the claim continues to be rejected. Furthermore, as the project has neared completion, the work undertaken by your client has been shown to require extensive remedial work as a result of inadequate care and skill on the part of your client. As a result of this, our client has been required to engage new contractors to make up for the remedial work not performed by your client.

Within the next few weeks, our client will be in a position to confirm the damages suffered as a result or your client's repudiation of its commitments and inadequate workmanship. When this becomes clear, we will write to you to confirm the amount of our client's counter claim against your client.

However, for all purposes we confirm that it is our client's position that it has no obligation to make any payment to your client whatsoever, with it being noted that in any case our client's counter-claim is certain to greatly exceed the amount your client has demanded from our client.

[31]   On 8 November 2024, TPS’s solicitors wrote to EPS’s solicitors referring to the above letter, and asserted that a payment schedule had not been provided in response to TPS’s October Claim. TPS therefore demanded payment of the October Claim without set off or deduction as provided for in s 23 of the CCA, plus legal costs.

[32]   EPS’s solicitors at the time responded on 18 November 2024, saying that they were “perplexed” by TPS’s position that the claimed amount was payable, referring to their letter of 11 October 2024.

[33]   TPS itself, rather than its solicitors, then emailed EPS directly on 22 November 2024 saying that they had received the correspondence from EPS’s lawyer that it did not shed any light on the basis for non-payment and attaching TPS’s “further payment claim.” This claim, referred to in this judgment as the November Claim, was for

$397,567.42 and was in respect of the same five invoices plus the labour variation. The difference in the total claimed between the October and November claims relates to interest.

[34]   It is not in dispute that no response was sent by EPS following the November Claim within the time required for a payment schedule.

Parties’ Positions

[35]   EPS’s position is that as the November Claim is essentially a re-sent version of the October Claim, it is not a new claim requiring a payment schedule because EPS had already provided a valid payment schedule in response to the October Claim.

[36]   TPS says that it sent the November Claim after realising the October Claim was not valid because it did not have a due date.

[37]   But EPS submits that the October Claim was still valid as it was accompanied by a notice that stated that “the due date for payment is the date agreed between you and the claimant” and that TPS and EPS had agreed, pursuant to cl 3.2 of TPS’s terms and conditions, that the due date was the date that TPS put on its invoices, which was the twentieth day of the month following. EPS says this was agreed to and understood by all parties.

[38]   EPS contends that the situation is analogous to Winslow Properties Ltd v Wooding Construction Ltd, where the Court found that the failure to specify a due date for payment did not prevent the payment claim being valid as documents accompanying the payment claim (in that case a letter) allowed the due date to be ascertained as the letter said “we anticipate the issue of your corresponding payment schedule within 10 working days of receipt of this payment claim”.7

7      Winslow Properties Ltd v Wooding Construction Ltd HC Auckland CIV-2006-404-004969, 4 April 2007 at [24] and [25].

[39]   Here, however, whilst a letter accompanied the October Claim, it did not set out a due date for payment nor indicate when a payment schedule was expected. The solicitors for TPS instead only recorded that the attached payment claim was for all amounts owing and that “it considers that they are due and payable”. Furthermore,  cl 3.2 of TPS’s terms provides that the time for payment will be stated on the invoice, quotation or any other order forms but if no time is stated then payment will be due seven days following the date of the invoice. The payment claim itself is not an invoice and the invoices attached include their original dates rather than a date relevant to the October Claim. It is not clear therefore that the October Claim would be found to comply with the s 20(2)(d) requirements.

[40]   Furthermore, whilst the CCA does not prescribe the form of a payment schedule, such that the form of a letter may suffice,8 an issue still arises as to whether the 11 October 2024 letter satisfies the requirements of s 21.

[41]   EPS submits that it does comply, including by reference to explanations provided in two earlier letters from EPS’s solicitors, dated 13 June 2024 and 12 July 2024. However, neither were referred to by date in the 11 October 2024 letter.

[42]   As TPS submits, issues as to the validity of the October Claim or the payment schedule will not be relevant to this application if I agree with the approach in Sol Trustees Limited v Giles Civil Limited where Associate Judge Sargisson held:9

[6] … There is nothing in the Act barring a party to a construction contract that prevents a contractor from resubmitting prior progress claims by repeating them in subsequent claims, or that prevents the principal from reiterating the same response in each subsequent payment schedule. Because the effect of resubmission reactivates the claim, the principal cannot simply sit on its hands if it wishes to avoid the statutory consequences of not responding to a payment claim.

[43]   EPS submits that this Court is not bound to follow that decision, and that although the decision was appealed, the issue was not addressed by the Court of Appeal.

8      Westnorth Labour Hire Ltd v S B Properties Ltd HC Auckland CIV-2006-404-1858, 19 December 2006.

9      Sol Trustees Ltd v Giles Civil Ltd [2014] NZHC 1813 at [6].

[44]   Secondly, EPS submits that these proceedings do not involve a subsequent payment claim which repeats claims from a prior payment claim. In this case, EPS says there is just one payment claim, but that it was sent twice.

[45]   Thirdly, EPS submits that the issue that concerned the Courts in Sol Trustees was whether the applicant, SOL, had issued valid payment schedules on or before the dates required in response to the respondent’s payment claims 13 and 14. The Court of Appeal agreed with the High Court that SOL’s emails could not be construed as payment schedules either on their own or read with the spreadsheet and earlier denials.10

[46]   EPS submits that in Sol Trustees the respondent never received a valid payment schedule in response to its payment claims. So, neither the High Court nor the Court of Appeal made any finding that a previously disputed portion of a payment claim becomes due and recoverable simply because it is included again in a later payment claim to which the respondent does not provide a response.

[47]   TPS responds that although EPS argues that Sol Trustees is not binding on this Court, the statement of principle referred to in [42] above reflects the law and the same approach has been followed in a number of other cases, including by the Court of Appeal in George Developments Ltd v Canam Construction Ltd.11

[48]EPS submits, however, that any attempt to rely on George Developments Ltd

is misplaced. In that case the Court of Appeal stated:12

[44] … We do not accept the appellant’s contention that a contractor could never re-present a previously declined or ignored claim even if it wished to resubmit the claim or support it with further information. …

[49]   In making that comment, the Court of Appeal referred to paragraph [68] of the High Court decision, where Associate Judge Christianson observed:13

10     SOL Trustees Ltd v Giles Civil Ltd [2014] NZCA 539, [2015] 2 NZLR 482 at [55].

11     George Developments Ltd v Canam Construction Ltd, above n 5, at [44]. See also CPB Contractors Pty Ltd v FZ Group NZ Limited [2024] NZHC 3421 at [25].

12     George Developments Ltd v Canam Construction Ltd, above n 5.

13     Canam Construction Ltd v George Developments Ltd HC Auckland CIV-2004-404-3565, 10 November 2004.

… There was nothing in the process which disqualifies a payment claim from rolling over sums unpaid on previous payment claims…

[50]   Here, EPS submits TPS’s November Claim does not include a rollover component. Rather, it is just the same payment claim sent a second time, even though it had already been disputed. The only difference is that the re-sent claim included a due date for payment, but EPS submits that did not need to be done.

[51]   The November Claim also included TPS’s further accrued interest for October 2024. EPS submits this was inappropriate given that the claimed amount that TPS was adding interest to was disputed. EPS notes that TPS has appropriately not sent any further payment claims claiming additional interest for the months that have since passed.

[52]   EPS contends that the major issue that the Court of Appeal was concerned with in George Developments was whether the document which was described as Canam’s progress payment claim 15 for $443,053.61 was a valid payment claim.14 This claim included an  amount of $158,591.76 previously claimed in Canam’s  Payment  Claim

12. That $158,591.76 amount had been disputed by George Development in an earlier payment  schedule  and  referred  to  adjudication  under  the  CCA.   The  balance of

$264,637.88 therefore represented a new or freshly claimed amount.

[53]   EPS submits that importantly, and appropriately in George Developments, Canam only claimed the fresh component of Payment Claim 15 as the debt that was due and recoverable under s 23 of the CCA, even though George Developments had failed to provide a payment schedule in time in response to Payment Claim 15 which included that repeated amount.

[54]   EPS submits that George Developments is therefore not authority for the proposition that a claimed amount that has already been the subject of dispute in a previous payment schedule may then become a debt due and recoverable through the Courts if the amount is restated in a subsequent payment claim that the respondent does not provide a payment schedule to.

14     George Developments Ltd v Canam Construction Ltd, above n 5, at [11].

[55]   EPS says that the dispute resolution procedure in pt 3 of the CCA is the procedure that the CCA contemplates, not a procedure whereby a claimant simply goes back and resends the payment claim that has already been disputed—potentially on multiple occasions—creating the possibility that the respondent might fail to issue a further payment schedule. EPS says that tactic creates a risk that a respondent’s original dispute could be unfairly disregarded, not on the merits, but merely due to a failure to repeat its earlier response to a re-sent claim.

[56]   EPS further submits that such an outcome would be inconsistent with both the letter and purpose of the CCA and that, furthermore, allowing such an approach would create a dangerous precedent as it would encourage claimants to repeatedly send the same payment claim, hoping the respondent might, through inadvertence or confusion, fail to provide a payment schedule in response. The claimant could then exploit that procedural omission to argue that the claimed amount is a debt due and recoverable in a court. Worse still, EPS says, the claimant could, as in this case, take the serious step of issuing a statutory demand based on the claimed amount when the respondent has a counterclaim against it for significantly more. EPS submits that it may be inferred that TPS was indeed hoping for that here. In support of this, they point to the fact that the November Claim was sent to EPS directly, on its solicitors’ instructions, as opposed to EPS’s solicitors who were representing EPS in the dispute.

[57]   EPS further submits that while it accepts that some payment claims can be resubmissions of previously declined or ignored claims, this does not extend to the same payment claim being sent a second time even though EPS had already disputed that claim by way of a payment schedule.

Discussion

[58]   EPS is correct that the Courts in George Developments did not award Canam summary judgment for the reissued component of Canam’s Payment Claim 15. The High Court and the Court of Appeal instead only entered and upheld summary judgment respectively for the fresh component of $264,637.88 claimed by Canam.

[59]   However, the way that the Court of Appeal in George Developments carefully discussed the portion of the claim that had previously been disputed and was now the

subject of an adjudication suggests that the Court considered the disputed amount could have been claimed, but it was appropriate that it had not been.15 In such a case if summary judgment had been obtained (or the statutory demand set aside) it may have lead to an application to stay enforcement of the summary judgment (or of the liquidation proceedings) on the basis that the “pay now, argue later” scheme must at some point allow the dispute to be argued.

[60]   Significantly in George Developments, the dispute had been referred to adjudication whereas the dispute here has not. Either TPS or EPS can refer a dispute to adjudication. Ordinarily it will be the party who seeks payment who does so but the other party cannot just sit on its hands in the meantime and say it has raised the dispute on one occasion and so it is no longer required to respond to further payment claims or to refer the dispute to adjudication.

[61]   Furthermore, it is settled law that a response to an earlier payment claim cannot be relied upon in respect of a later issued payment claim.16 Section 21(2) makes that clear by requiring that the payment schedule identify the payment claim to which it relates. EPS cannot therefore rely on the 11 October 2025 payment schedule for the November Claim.

[62]   Nor do I consider there is any weight in the point that the payment claim was sent directly to EPS rather than its solicitors. This is likely to have been to avoid any issue with properly issuing it to EPS under the contract. The contract itself provides for EPS’s direct address, rather than its solicitors, so that is likely to be why it was issued directly.

[63]   In my view the facts in this case are a perfect example of why TPS must be entitled to issue the November Claim, because otherwise the “pay now, argue later” regime would be significantly undermined, with issues arising as to whether payment claims were resubmissions of earlier claims or not.

15     George Developments Ltd v Canam Construction Ltd, above n 5, at [65].

16     Herbert Construction Company Ltd v Alexander HC Napier CIV-2010-441-500, 21 October 2011 at [49].

[64]   Furthermore, even if there were some restrictions on issuing a payment claim in respect of the same outstanding payments, which I have held there is not, a party must be entitled to issue a further payment claim if there is doubt about whether all   s 20 requirements have been met to avoid issues arising.

[65]   Any abuse through repeated submission in any underhanded way could be responded to by the exercise of the Court’s discretion under s 290(4)(c) if necessary.

[66]   In Demasol Ltd v South Pacific Industrial Ltd, the Court of Appeal held that when considering whether a payment claim meets the requirements of s 20, an enquiry into the entitlement of a party to serve a payment claim under the contract is not necessary.17 The Court held that if a party on which a payment claim is served wishes to contend that there is no entitlement to serve the payment claim, then that is a point that is to be raised in the payment schedule, rather than when steps are taken to enforce the debt.18

[67]   Demasol related to the entitlement to issue a payment claim where it may have been arguable the contract was a single payment contract within s 20(1)(a), rather than resubmission of a previous claim, but in my view the approach must be the same. Any issues as to the validity of a payment claim or entitlement to issue the payment claim under the contract, could and should have been raised in a payment schedule.19 In Demasol, no payment schedule was issued and so the application to set aside the statutory demand was therefore declined.20

[68]   In this case, it is not in dispute that there was no response to the November Claim. For the same reasons as in Demasol, the application to set aside the statutory demand must therefore be declined.

17     Demasol Ltd v South Pacific Industrial Ltd, above n 5, at [41].

18 At [42].

19 At [42].

20 At [42].

Result

[69]   The application by EPS to set aside the statutory demand served on it by TPS is declined.

Costs

[70]   I did not hear from the parties on costs. TPS has succeeded and is therefore entitled to costs. I ask the parties to confer and only if agreement cannot be reached for memoranda to  be filed  on  behalf  of TPS  by  21  October 2025  and  EPS  by  4 November 2025. A decision on costs will then be made on the papers.

Associate Judge Sussock