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Australia (New South Wales) Cases
Click on a case to view.
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13th August 2004
Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where plaintiff moves for summary judgment - whether defendant has arguable defence to preclude plaintiff from obtaining summary judgment - where document alleged to be payment schedule did not indicate the payment defendant intended to make - whether defendant provided payment schedule for purposes of s 14 - requirements of payment schedules - whether question to be determined on final hearing and not by way of summary judgment - estoppel by representation - where alleged representation that parties take no further step in response to claim until negotiations take place - whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim - whether estoppel defence prohibited by s 34 - whether question to be resolved on application...
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23rd July 2004
Kembla Coal & Coke v Select Civil [2004] NSWSC 628BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination should be quashed - jurisdictional error - jurisdictional fact - whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related - whether existence of reference date a jurisdictional fact - whether adjudicator erred in law by determining application on basis that amendments to Act applied - whether defects liability period commenced "on" date of practical completion or "from" date of practical completion - meaning of time commencing "on" a day - whether validity of notice affected by illegibility - whether adjudicator erred in law by making allowance in determination for costs of preparation of claim - construction of "for" in "for construction work" in s 4 definition of "claimed amount" - whether adjudicator...
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20th July 2004
Barclay Mowlem Construction Ltd v Estate Property Holdings P/L [2004] NSWSC 658Building and Construction Industry Security of Payment Act 1999 (NSW) - Entry of summary judgment - Stay of judgment in part - Statutory scheme considered in relation to pending appeal
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19th July 2004
Barclay Mowlem Construction Ltd v Estate Property Holdings P/L [2004] NSWSC 649Contract - Proper construction of S.13(4)(b) of Building and Construction Industry Security of Payment Act 1999 (NSW) -Validity of payment claim ACTS CITED:Building and Construction Industry Security of Payment Act 1999 (NSW)
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7th July 2004
Emergency Services Superannuation Board v Davenport [2004] NSWSC 697BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudication determination should be quashed - Where alleged that adjudicator determined claim on basis explicitly disavowed by second defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so - Whether determination vitiated by denial of natural justice - Whether determination vitiated by adjudicator's alleged failure to consider relevant provision of contract and plaintiff's submissions thereon s22(2)(b) - Whether payment claim compiled with s 13(2)(a) of the Act - Whether discretion to grant prerogative relief should be exrcised ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
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18th June 2004
Walter Construction Group v The Robbins Company [2004] NSWSC 549PRACTICE AND PROCEDURE - Mareva orders - dispute under Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant is an American corporation - where work conducted in Australia through a subsidiary - where subsidiary has made substantial losses - where defendant has no assets in Australia apart from shareholding in subsidiary, debts owed to it by subsidiary, and adjudicated amount under Act - whether facts reveal a sufficient basis for grant of a Mareva order - whether power to grant a Mareva order enlivened by problems of enforcement within the jurisdiction, or enlivened by problems of enforcement generally
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11th June 2004
Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553CORPORATIONS - winding up - statutory demand - application to set aside or vary on basis of offsetting claim - statutory demand based on judgment debt arising from determination under Building and Construction Industry (Security of Payment) Act 1999 - whether possible to have an offsetting claim against such a judgment debt - whether offsetting claim established on the facts - STATUTES - ACTS OF PARLIAMENT - operation and effect of statutes - Building and Construction Industry (Security of Payment) Act 1999 - whether judgment debt arising from adjudication under that Act can be subject of an "offsetting claim" for purposes of section 459H(5) Corporations Act 2001 (Cth) - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - adjudication under Building and Construction Industry (Security of Payment) Act 1999 becomes subject of judgment debt - whether able to be the subject...
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11th May 2004
Rail Infrastructure Corporation v Veghelyi [2004] NSWSC 427PROFESSIONS AND TRADES - builders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment - ADMINISTRATIVE LAW - prerogative writs and orders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment ACTS CITED: Building and Construction Industry (Security of Payment) Act 1999
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27th April 2004
Grosvenor Constructions (NSW) P/L (in administration) v Musico [2004] NSWSC 344Building and construction - Practice and procedure - Stay of judgment debt - Progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 - Plaintiff obtains adjudication certificate pursuant to section 24 of Act and files adjudication certificate as a judgment for debt pursuant to section 25 of Act - Plaintiff placed under external administration-Defendants seek stay of proceedings - Evidence that defendants, if successful in final proceedings, would suffer irreparable prejudice as payment pursuant to the judgment debt could never be recouped - A failure to order the stay would in practice convert an amount which ought to be an interim payment into a final payment - Principles to be applied on application for stay of judgment debt - English authorities examined ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - ...
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21st April 2004
ACA v Sullivan; Austruc v ACA [2004] NSWSC 304BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - s 7(2)(a) - construction of "forms part of" - whether construction contract formed part of loan agreementACTS CITED: Building and Construction Industry Security of Payment Act 1999