Australia (New South Wales) Cases

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  • 24th September 2009
    Robson Civil Projects Pty Limited v Walter Mining Pty Limited [2009] NSWSC 1071
    Building and Construction Law - Adjudication determination made pursuant to s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) - Whether the adjudicator failed to make a bona fide attempt to exercise his powers under the Act – Whether the plaintiff was denied a measure of natural justice as required under the Act – Held that there was no failure by the adjudicator to make a bona fide attempt to perform his task under the Act, nor any substantial denial of natural justice - The adjudicator considered the operation of the appropriate clauses of the contract in question, the operation of the Act, and he afforded each party the opportunity to make submissions.
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  • 21st September 2009
    Project v TQM [2009] NSWSC 699
    Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Whether a genuine dispute can exist or an off-setting claim can be found notwithstanding a judgment for progress payments under the Building & Construction Industry Security of Payment Act 1999. Held it can.
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  • 10th September 2009
    Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938
    Contracts - building, engineering and related contracts – plaintiff contends adjudication determination is void under s 7(2)(b) of Building and Construction Industry Security of Payment Act 1999 because contract was for the carrying out of residential building work – meaning of ‘resides in or proposes to reside in’ – consideration of plaintiff’s intention – plaintiff resided at the premises at all relevant times – purported adjudication determination is void.
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  • 5th August 2009
    Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234
    Appeal and New Trial – new trial – whether the trial judge failed to resolve evidence concerning the pleaded agreement - Contracts – partly written and partly oral – principles for determining whether a contract is wholly written, partly written and partly oral, or wholly oral – role of surrounding circumstances – admissibility of evidence of subsequent conduct – scope of operation of the parol evidence rule to partly written and partly oral contracts - Contracts – general contractual principles – construction and interpretation of contracts – whether surrounding circumstances can be looked to without needing to find ambiguity – present state of High Court authority on whether ambiguity is a precondition to using surrounding circumstances - Interpretation – construction of undertakings and court orders – admissibility...
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  • 22nd July 2009
    Reed v Eire [2009] NSWSC 678
    Administrative Law. Application to set aside determination under Building and Construction Industry Security of Payment Act 1999.Whether the decision was a nulity and whether there was a denial of natural justice resulting from the adjudicator's determination of the question of when a payment claim was served. Held not. Consideration of terms of Electronic Transactions Act 2000. Trade and Commerce. Whether statements in adjudication application were misleading and deceptive. Held not and no effective causal link.
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  • 9th July 2009
    Doyle v Hall Chadwick [2007] NSWCA 159
    Costs - Assessment - Certificate taking effect as judgment - Whether appeal against assessment still available - Whether costs assessor can determine questions of construction of a costs agreement - Whether condition of conditional costs agreement, depending on recovery of monies, satisfied.
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  • 3rd July 2009
    Maurice Tarabay v Fifty Property Investments Pty Ltd [2009] NSWSC 617
    Trade and Commerce - Trade Practices Act 1974 (Cth) – s 51AA(1) – unconscionable conduct within the meaning of the unwritten law – the plaintiff and a company associated with the defendants were parties to a building contract - the company denied that the plaintiff was party to the contract asserting that the plaintiff’s deregistered company was the party rather than the plaintiff himself - certain of the defendants were knowingly involved in the denial – the plaintiff averred that the denial was unconscionable conduct within the meaning of the unwritten law because the plaintiff and the other party to the building contract had acted on the assumption or conventional basis that the plaintiff was a party, the denial was in the circumstances unconscionable and the other party would have been estopped from making the denial - held that the other party had not engaged...
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  • 23rd June 2009
    Perform (NSW) Pty Ltd v MEV- AUS Pty Ltd & Anor [2009] NSWCA 157
    Building and Construction - adjudication under Building and Construction Industry Security of Payment Act 1999 - payment schedule could "indicate" reasons for nil valuation by referring to previous payment schedule - in any event adjudicator's view that it could not did not make adjudication void - what is indicated in a payment schedule is for adjudicator to determine - did not fail to comply with basic and essential requirements of valid adjudication - reliance on backcharge claims as set-off - adjudicator requested further submissions - submissions included that could not rely - open to adjudicator to pay regard to submission - no denial of natural justice - no substance in complaint that adjudicator failed bona fide to exercise his powers - COSTS - adequacy of trial judge's reasons - discretion re-exercised - cross-claim did not have to be decided - but was either unnecessary or...
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  • 15th June 2009
    Levadetes v Iberian Artisans [2009] NSCW 641
    Building and Engineering Contracts - Building and Construction Industry Security of Payment Act - progress claim - whether adjudicator erred - whether a contract or arrangement - whether "construction contract" was "for the carrying out of residential building work."
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  • 15th June 2009
    A J Richardson Properties Pty Ltd v Segboer [2009] NSWSC 576
    Indemnity costs builder serves statutory demand for adjudicated progress claim knowing owner has much larger claim for overpayment that is the subject of common law proceedings in the Court plaintiff applies to set aside the demand defendant delays service of submitting appearance demand then set aside without opposition
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