Australia (New South Wales) Cases

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  • 28th February 2007
    Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31
    CONTRACT – building contract – implication of term by custom or usage - whether custom or usage so well-known to home owners to imply term into contract – whether implication contrary to express terms of contract - REASONS FOR DECISION  – whether trial judge gave adequate reasons for decision – whether trial judge failed to properly engage in fact-finding exercise – determination of expert evidence - DAMAGES – damages for breach of building contract – whether damage proved – rejection of evidence - difficulties in estimating loss – damages should not be nominal - UNREPRESENTED LITIGANT – duty of a trial judge - whether trial judge ensured unrepresented party understood procedural options – failure to provide explanation of processes - APPEAL – order for new trial - whether trial sufficiently unfair to demonstrate...
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  • 27th February 2007
    Independent Civil Contractors P/L v JGE Earthmoving P/L [2007] NSWSC 132
    CORPORATIONS - winding up - creditors voluntary winding up - application for leave to proceed with cross-claim against company in Local Court proceedings - where company was plaintiff in those proceedings but assigned cause of action after commencement of winding up - assignee substituted as plaintiff in Local Court - whether set-off pursuant to s.553C had occurred - because it had not, no need for applicant's claim to be pursued in existing proceedings LEGISLATION CITED: Bankruptcy Act 1966 (Cth), s.86 Building and Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth), Part 5.3A, ss.471B, 500(2), 553(1), 553C
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  • 26th February 2007
    John Holland P/L v Roads & Traffic Authority of New South Wales [2007] NSWCA 19
    BUILDING AND ENGINEERING CONTRACTS - Progress payments - Claim under Building and Construction Security of Payment Act 1999 - Adjudication - Whether submissions of respondent "duly made" - Whether adjudicator was required to consider them - Whether determination of adjudicator invalid because of failure to comply with s.22 of the Act, lack of good faith or denial of natural justice.LEGISLATION CITED:  Building and Construction Industry Security of Payment Act 1999 ss.8-10, 13, 14, 17, 20-22
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  • 14th February 2007
    Baulderstone Hornibrook P/L v Queensland Investment Corp [2007] NSWCA 9
    CONTRACTS — Building, engineering and related contracts - Payment schedules under s 14 of the Building and Construction Industry Security of Payment Act 1999 — Whether a payment schedule is properly provided if it is not referred to in a cover letter — Whether a payment schedule prepared and signed by an agent without express authority can be said to have been provided by the principalCONTRACTS — particular parties — principal and agent — authority of agents — construction and extent of authority — authority created by other means — acts incidental to effective execution of express authorityLEGISLATION CITED:  Building and Construction Industry Security of Payment Act 1999
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  • 30th January 2007
    Biseja P/L v NSI Group P/L No1 [2007] NSWSC 283
    PROCEDURE – stay of execution – where writs recorded on land under Real Property Act – whether recording should be removed – REAL PROPERTY – Torrens Title – effect of recording a writ on title. LEGISLATION CITED : (NSW) Building and Construction Industry Security of Payment Act 1999 - (NSW) Civil Procedure Act 2005 s 135(2)(b) - (NSW) Real Property Act 1900 s 105A(6)
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  • 19th January 2007
    Veolia Water Solutions & Technologies v Kruger Engineering Australia P/L [2007] NSWSC 46
    CONSTRUCTION CONTRACT - statutory regulation of entitlement to and recovery of progress payments - payment claim - valuation of delay costs - payment schedule - incomplete or defective works - whether adjudication determination void - natural justice - whether dispute decided on basis for which parties did not contend - requirement to have regard to certain matters (s 22(2)) - whether adjudicator entitled or required to consider statutory declaration except as submission in support of payment schedule  LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
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  • 20th December 2006
    Hutchinson J P/L v Auslat Properties P/L [2006] NSWDC 126
    Building and Construction - No payment schedule served - Whether payment schedule sufficient and valid - Whether the building works were sufficiently identified LEGISLATION CITED: Building and Construction Industries Security of Payment Act 1999 - Civil Procedure Act 2005
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  • 15th December 2006
    Brewarrina Shire Council v Beckhaus Civil P.L [2006] NSWCA 361
    CONTRACTS – building, engineering and related contracts – alleged non-compliance with contract specifications – payment claimed under s 8 of the Building and Construction Industry Security of Payment Act 1999 – whether breach of contract – measure of damages – assessment of expert evidence LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
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  • 8th December 2006
    Michael John Smith t/a Michael Smith Constructions v Avibe P/L : J & S Heddle P/L [2006] NSWSC 1402
    CONVEYANCING [191]- Caveat- Extension- Money owed to builder for work done- Building contract for residential building purported to create charge over property at moment of contract- Act generally avoiding creation of charges- Significance of "hereby charges", "subject to the Act"- Charge not valid- Extension of caveat refused. LEGISLATION CITED: Building & Construction Industry Security of Payment Act, 1999 - Home Building Act, 1989, s 7D - Real Property Act 1900, s 74K
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  • 7th December 2006
    Royal Tiles Constructions P/L v Park View Constructions P/L [2006] NSWDC 182
    Building and Construction - Building and Construction Industry Security of Payment Act 1999 - Service of a Payment Claim by fax - Whether fax number was at the ordinary place of business - Practice and Procedure - Summary judgment – No genuine dispute raised by Defence  LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999: s 31
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