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Australia (New South Wales) Cases
Click on a case to view.
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18th September 2006
Bitannia P/L v Parkline Constructions P/L (No. 2) [2006] NSWCA 255RESTITUTION – prior to the appeal Appellant agreed to pay the amount of the judgment debt to the Respondent on certain conditions – appeal successful – order made to repay money in terms not inconsistent with the agreement
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14th September 2006
Gateway Fence Installation P/L v Amstruct P/L (Home Building) [2006] NSWCTTT 450LEGISLATION: Home Building Act 1989 (NSW) - Building and Construction Industry Security of Payment Act 1999 (NSW)
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6th September 2006
Kell & Rigby P/L v Flurrie P/L [2006] NSWSC 906REAL PROPERTY – Land under Torrens Title – Caveats – BUILDING AND ENGINEERING CONTRACTS – Residential Building Contracts – in what circumstances can residential building contract create caveatable interest - Home Building Act 1989, s 7D – whether s 7D(3)(c) defines terms of permissible charge or event precedent to enforceability – whether judgments obtained by registration of adjudication certificates under Building and Construction Industry Security of Payment Act are judgments that payments of moneys due under the contract be made within s 7D(3)(c) – whether caveatable interest can be created by estoppel when creation by contract prohibited. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 9, 11, 16, 32 - Building Services Corporation Legislation Amendment Act 1996 (NSW) - Commercial Arbitration...
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5th September 2006
John Holland v RTA [2006] NSWSC 874BUILDING AND CONSTRUCTION - where practical completion achieved - where contract provides for partial release of security at principal's discretion - whether principal entitled to retain all security until amount owing in final payment schedule paid - whether principal has a duty to act in good faith or reasonably - whether principal complied - where contract provides for superintendent's assessment of final claims at expiration of defects liability period - whether void by s 34 of Building and Construction Industry Security of Payment Act 1999 ACTS CITED: Building and Construction Industry Security of Payment Act 1999
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3rd September 2006
Galaxy Construction & Dev. Group P/L v Clarke & Sons Plumbing (Home Building) [2006] NSWCTTT 422LEGISLATION: Home Building Act 1989 (‘the Act’). - Building and Construction Industry Security of Payment Act 1999 (‘the Security of Payment Act’).
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28th August 2006
Bitannia P/L v Parkline Construction P/L [2006] NSWCA 238BUILDING AND CONSTRUCTION – progress payments - Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 & 15 – whether bona fide belief in entitlements claimed required for valid payment claim PRACTICE AND PROCEDURE – whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on as a defence – whether Building Payment Act s 15(4)(b)(ii) precluded such defence CONSTITUTIONAL LAW – section 109 inconsistency – whether Building Payment Act s 15(4)(b) invalid to the extent that it prevents the raising of a cross claim in reliance on s 52 of the Trade Practices Act LEGISLATION CITED: Bills of Exchange Act 1909-1912 (Cth), s43 - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 15, 25, 32, 34 - Constitution, ss 76(ii) and 77(iii), 109 - Corporations Act 2001 (Cth), ss 5E-5G -...
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14th August 2006
John Goss Projects v Leighton Contractors [2006] NSWSC 798BUILDING AND CONSTRUCTION - whether one adjudicator valued construction work - whether subsequent adjudicator bound by s 22(4) of the Building and Construction Industry Security of Payment Act 1999 to value that work accordingly - where adjudicator decided that obiter dicta in Supreme Court judgment were incorrect - where this issue not advanced by either party - where no notice to parties - whether material to adjudicator's determination - whether parties denied natural justice - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWSC 394 - whether bringing the same claim in consecutive adjudications is abuse of process - where party likely to raise in future adjudication issue of notice precondition on the bringing of claims - whether declaration has utility - whether clause conflicts with s 13(4) of the Act - whether clause void by operation of s 34 of the...
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4th August 2006
Biseja v NSI Group [2006] NSWSC 835BUILDING AND CONSTRUCTION - where adjudicator found that project management services were "related goods or services" under the Building and Construction Industry Security of Payment Act 1999 - where project management fee might be discharged by transfer in specie of real estate - whether s 7(2)(c) of Act applicable - whether consideration was to be calculated by the value of services - whether open to adjudicator to reach factual conclusion - whether reviewable error - application of Brodyn v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 ACTS CITED: Building and Construction Industry Security of Payment Act 1999
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28th July 2006
Bell v Pearce (Home Building) [2006] NSWCTTT 407ISSUES Costs – parties each have some success – Calderbank letters – reasonableness of rejection – inability to settle LEGISLATION: Consumer, Trader and Tenancy Tribunal Act 2001
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17th July 2006
Bower v Goth [2006] NSWSC 805Appeal - Local Court Small Claims Division - outstanding architect's fees ACTS CITED: Local Courts Act 1982 (NSW) - ss 70, 73 - Uniform Civil Procedure Rules 2005 - Part 50.5