Australia (New South Wales) Cases

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31st October 2008
Plaza West P/L v Simon's Earthworks (NSW) P/L [2008] NSWSC 753

BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW) s 9(a) - Requirement that progress payment be calculated in accordance with the terms of the contract - adjudicator determines amount to be calculated by reference to a provision which is a mechanics provision rather than according to criteria set by contract - approach to calculation a matter for adjudicator - adjudication determination not invalid even if adjudicator makes error of law provided he makes bona fide attempt to exercise the power conferred by the Act - no denial of natural justice by adjudicator in not dealing with further submissions of respondent where to do so is unnecessary by reason of acceptance of claimant's primary submission - adjudication valid - claimant obtains judgment in District Court based on adjudication - respondent seeks repayment of part alleged to be liability of claimant to sub-contractor...

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25th September 2008
Zurich Specialities London Ltd v Thiess Pty Ltd [2008] NSWSC 1010

[INSURANCE] [BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] construction of insurance policy provision requiring insured to take reasonable precautions to safeguard subject matter insured from loss or damage whether such provision is a construction contract between the insured and insurer LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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21st August 2008
Broad Construction Services (NSW) Pty Ltd v Michael Vadasz [2008] NSWSC 1057

BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - adjudicator did not consider expert's report - whether denial of procedural fairness - whether report constituted a submission 'duly made' in support of payment schedule. LEGISLATION CITED: - Building and Construction Industry Security of Payment Act 1999

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20th August 2008
J & Q Investments Pty Ltd v ZS Constructions (NSW) Pty Ltd [2008] NSWCA 203

Stay pending appeal - Building and Construction Industry Security of Payment Act 1999 LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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19th August 2008
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd t/a Novatec Construction Systems & Anor [2008] NSWSC 858

Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether section 14 (3) of the Act permits incorporation by reference into a payment schedule - Whether respondent’s payment schedule indicated, within the meaning of s. 14 (4) of the Act as reasons for withholding payment, the reasons contained in an anterior payment schedule Whether the Adjudicator made an error of a character that was within his jurisdiction Whether the Adjudicator’s findings constitute a failure by the Adjudicator to comply with the requirements contained in s.22(2)(d) of the Act - Whether Adjudicator denied natural justice Whether the Adjudicator failed in good faith to exercise the power to make an adjudication. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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19th August 2008
Peter's of Kensington v Seersucker P/L [2008] NSWSC 897

BUILDING AND ENGINEERING CONTRACTS – whether contract for provision of architectural services was a construction contract – whether payment claim complied with requirements of s13(2) Building & Construction Industry Security of Payment Act 1999 – whether adjudicator’s decision on sufficiency of information in payment claim is open to review. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Civil Procedure Act 2005 - Environmental Planning and Assessment Act 1979 - Uniform Civil Procedure Rules

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14th August 2008
BBB Constructions P/L v Frankipile Australia P/L [2008] NSWSC 982

CORPORATIONS – creditor’s statutory demand – application to set aside demand – where debt arose under (NSW) Building and Construction Industry Security of Payment Act 1999 – offsetting claim – where parties are head contractor and sub-contractor – test for determining whether there is a genuine offsetting claim – where plaintiff alleges that defendant is liable under contract for damage to neighbouring properties due to inadequate construction work – where preliminary expert evidence suggests that defendant may have caused the damage – whether the claim is bona fide and truly existing – whether plaintiff’s financial position relevant to whether offsetting claim made in good faith – whether offsetting claim needs to be particularised as an exact amount – whether condition should be imposed that the plaintiff...

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30th July 2008
J & Q Investments P/L v ZS Constructions (NSW) P/L [2008] NSWSC 838

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – whether adjudicator denied party natural justice by failing to consider portions of adjudication response – whether failure to exercise powers in good faith – whether adequate reasons given for valuation of claim. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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15th July 2008
Plaza West P/L v Simon's Earthworks (NSW) P/L [2008] NSWCA 279

BUILDING AND ENGINEERING CONTRACTS – payment claim – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 9, 13, 14, 17, 22, 32 - ADJUDICATION – whether error of fact or law sufficient to vitiate adjudication – whether adjudicator fulfilled statutory task – whether denial of procedural fairness - RESTITUTION – whether discharge of debt owed to third party - LEGISLATION CITED: - Building and Construction Industry Security of Payment Act 1999 (NSW)

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15th July 2008
Kevin Lucas & KDL Building P/L v Robert Montgomery [2008] NSWDC 207

Slip rule - Can joint judgment against two defendants be corrected to separate judgments against each? - Stay pending appeal - Capacity of defendant to pay LEGISLATION CITED: r 36.17 Uniform Civil Procedure Rules 2005 - s56 Civil Procedure Act 2005 - ss 92, 94 Home Building Act 1989

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