Australia (New South Wales) Cases

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12th October 2007
Tombleson v Dancorell Constructions P/L [2007] NSWSC 1169

[STAY] - [SECURITY] Application to declare determination void - no application to set aside judgment - Building and Construction Industry Security of Payment Act 1999 - Whether proceedings should be stayed under s 25(4) pending payment of security by the plaintiff - whether stay should be ordered otherwise where pleadings appear to circumvent the intention of the legislation LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Civil Procedure Act 2005 -Uniform Civil Procedure Rules 2005

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21st September 2007
Nikolic v Oladaily P/L [2007] NSWCA 252

CONTRACTS - Construction and Interpretation - implication of terms - inconsistency with express terms - whether contract a "fixed price" or a "do and charge" contract - where variations occurred - whether extent and nature of work known with sufficient precision at time of contracting - contract for building work RESTITUTION - where valid contract exists - subsidiarity doctrine - no evidence that appellant paid for work done - where work done paid by company associated with appellants LEGISLATION CITED: Trade Practices Act 1974 (Cth)

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20th September 2007
Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253

CONTRACTS - building contract - defective or incomplete work - entitlement to costs of rectificiation - if rectification a reasonable course - consideration of principles derived from Bellgrove v Eldridge - relevance of intention to carry out rectification work or whether it will be carried out - REFEREE'S REPORT - approach to consideration of adoption.

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31st August 2007
Boutique Developments Ltd v Construction & Contract Services P/L [2007] NSWSC 1042

JUDGMENTS - Administrative Law - Particular Tribunals or bodies - Injunction sought to restrain the determination of an adjudication application under the Building and Construction Industry Security of Payment Act 1999 - Whether expert reports in aid of an action against a third party insurer for defects in construction fall within the definition of "construction work" in s 5(1) or "related goods or services" in s 6(1) - Whether the jurisdiction law entitlement question should be decided by the Court Legislation Cited: Building and Construction Industry Security of Payment Act 1999

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13th August 2007
Ozy Homewares v Wesgordon [2007] NSWSC 982

CORPORATIONS – Application under s 459G of the Corporations Act 2001 (Cth) to set aside statutory demand – Demand relates to summary judgment obtained in Local Court pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) which precluded applicant from bringing cross-claim or raising defence to claim – Applicant has appealed judgment and disputes debt – Whether debt is res judicata precluding genuine dispute as to existence of debt where applicant prevented from putting cross-claim or defence and s 32 of the Act allows for restitution following judgment – Whether “some other reason why the demand should be set aside” under s 459J(1)(b) of the Corporations Act given the circumstances – Whether money should be paid into Court under s 459M of the Corporations Act as pre-condition to...

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12th July 2007
Rojo Building P/Lv Jillcris P/L [2007] NSWSC 880

BUILDING AND CONSTRUCTION - Security of payment - Authority of solicitor to sign payment claim on behalf of claimant - Progress payments - Payment claim served on defendant - Failure of defendant to provide payment schedule within time limited by the Act - Plaintiff serves notice of intention to make adjudication application - Whether plaintiff thereby made any election - Whether open to plaintiff to withdraw any election made. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 - Home Building Act 1989

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10th July 2007
JAR Developments P/L v Castleplex P/L [2007] NSWSC 737

Service in accordance with s 109X Corporations Act 2001 (Cth) and s 31 Building and Construction Industry Security of Payment Act 1999 – effect whether determination of adjudicator void LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 11, 14, 15, 17, 31, Div 2 - Corporations Act 2001 (Cth), s 109X

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18th June 2007
John Holland P/L v Roads & Traffic Authority of New South Wales [2007] NSWCA 140

Construction contract - security given by contractor for performance and satisfaction of obligations - provision for partial release after practical completion if principal of opinion that it was just and equitable - in course of works adjudicated amounts (Building and Construction Industry Security of Payment Act 1999) paid - principal contended that adjudicator's determinations incorrect - claimed to recover the adjudicated amounts - decision that partial release not just and equitable because of outstanding dispute over adjudicated amounts - whether retention for a purpose not within contractual purposes of holding security - contractual mechanisms could result in contractor having to pay to principal amounts of the adjudicated amounts - was within purpose of securing satisfaction of contractor's obligations - no inconsistency with Building and Construction Industry Security of Payment...

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15th June 2007
Downsouth Constructions v Jigsaw Corporate Childcare [2007] NSWSC 597

BUILDING AND CONSTRUCTION CONTRACTS - where numerous payment claims relating to four different construction contracts served at once - whether open to plaintiff to make adjudication application in respect of some only of those payment claims relating to one only of those contracts - where payment claims assert matters of "defence" and matters of cross claim - where adjudication response asserts defence by way of set-off based on mutuality of dealings in respect of matters alleged by way of "cross claim" - where adjudicator concluded that the defence of set-off is not available by reason of s 20(2B) of the Building and Construction Industry Security of Payment Act 1999 - whether denial of natural justice - whether failure to exercise powers in good faith LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Civil Procedure Act 2005

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15th June 2007
Tsoukatos v Mustafa [2007] NSWSC 614

BUILDING AND ENGINEERING CONTRACTS – Claims under Building and Construction Industry Security of Payment Act 1999 (NSW) – Payment claim – Adjudication – Requirements for service of notice – Principles of service – Validity of service of documents addressed to the building of a party’s ordinary place of business as opposed to the precise address of the office within that building LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Civil Procedure Act 2005 (NSW)

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