Australia (New South Wales) Cases

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  • 6th June 2003
    Chadah P/ L v Kubota Tractor Australia P/L [2003] NSWSC 456
    CORPORATIONS - winding up - statutory demand - whether bona fide dispute exists - whether offsetting claim raised by affidavit filed within 21 days - whether affidavit accompanying statutory demand adequately "verifies that the debt … is due and payable by the company" - meaning of "verify". ACTS CITED: Corporations Act 2001 (Cth) - Trade Practices Act 1974 (Cth)
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  • 5th May 2003
    Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365
    CONSTRUCTION, SECURITY OF PAYMENT ADJUDICATION, Whether Adjudicator acted ultra vires in adjudication and determination - whether Adjudicator's determination a nullity - whether payment claim is foundation of jurisdiction of Adjudicator - whether serious issues to be tried - whether Defendant entitled to declarations and summary judgmentHELD: Defendant entitled to recover adjudicated amount from Plaintiff as debt due to it and entitled to summary judgment of $71,086.52ACTS CITED: Building Construction Industry Security of Payment Act 1999 (NSW) ss 4-7, s 13, s, 13(2), s 13(2)(a)-(b), s 14, s 17, s 17(2), s 19(2), s 20, s 20(2), s 21, s 22, s 22(1), s 22(2), s 22(2)(b)-(d), s 23(1)(a)-(b), s 25, s 25(1), s 25(2), s25(1)(a)-(b), s 25(2)(a), s 25(4), s 25(5)(a) - Supreme Court Act 1970 (NSW) s 94
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  • 9th April 2003
    Walter Construction Group Ltd v CPL (Surry Hills) P/ L [2003] NSWSC 266
    CONSTRUCTION - CONTRACT - SECURITY OF PAYMENT Whether payment claim valid - Whether failure to provide payment schedule attracts liability - Whether entitlement to summary judgment  - Whether claim related to construction work - Whether Building and Construction Industry Security of Payment Act 1999 (NSW) applies -  Whether payment claim premature - Whether claimant entitled to progress payment - Whether misleading or deceptiveACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) s 3(1); s 5(1)(a) - (g); s 5(2)(a) - (c); s 6(1)(a)(i) and (ii); s 6(1)(b)(i) - (iii); s 6(1)(c)(ii); s 7(1), (2), (2)(c); s 8, 8(2)(a)(i); s 9(a); s 13(1), (2)(a)-(c); s14(1)-(3), (4)(a), 4(b)(i)-(ii); s 15(2)(a)-(b), s 15(4) - Trade Practices Act 1974 (Cth) s 52
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  • 13th March 2003
    Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137
    CORPORATIONS - Winding up - application for order setting aside statutory demand - judgment debt - steps taken to appeal - whether statutory stay of execution, if in force, gives rise to genuine dispute as to existence of debt - whether appeal of itself gives rise to genuine dispute - whether statutory stay of execution represents some other reason why demand should be set aside - PROCEDURE - Local Court judgment for debt - avenue of appeal to Supreme Court - whether leave to appeal needed - whether appeal initiated within time - whether statutory stay of execution in force ACTS CITED: Corporations Act 2001 (Cth) ss.459E, 459G, 459J - Justices Act 1902, ss.101, 104, 106, 107 - Local Courts (Civil Claims) Act 1970, s.69 - Local Courts (Civil Claims) Rules 1988 - Supreme Court Rules, Part 51B
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  • 13th March 2003
    No 96 Factory Bargains v Kershel Pty Ltd [2003] NSWSC 146
    CORPORATIONS - winding up - application for order setting aside statutory demand - alleged genuine dispute - alleged offsetting claim for misleading or deceptive conduct ACTS CITED: Corporations Act 2001 (Cth), ss.459G, 459H - Trade Practices Act 1974 (Cth), ss.51AC, 52, 87
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  • 24th February 2003
    M & L Watson Pty Ltd t/as BBR Designs v Rilsung Pty Ltd [2003] NSWCA 36
    LEAVE TO APPEAL - where judgment at first instance was a discretionary costs judgment - where trial judge did not follow ordinary rule that costs follow the event - whether novelty of Building and Construction (Security of Payment) Act a relevant factor in exercising discretion to not make a costs order - where no matter of principle involved in appeal- where quantum of damages, although not ascertained, is clearly significantly below the statutory threshold  LEGISLATION CITED: Supreme Court Act s101(2(c)
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  • 17th February 2003
    Brewarrina Shire Council v Beckhaus Civil P/L [2003] NSWCA 4
    CONTRACT - Superintendent's obligation under AS2124 - 1992 to issue a payment certificate is subject to a condition precedent that contractor support payment claims with evidence and information - Requirement of contractor to provide evidence and information constitutes a condition precedent on either of two bases: a non-promissory condition or an obligation imposed on the contractor, which conditions the superintendent's obligation to issue payment certificate - Requirement of contractor to provide evidence and information is comparable to purchaser's obligation to service notice to complete - Meaning of term "monthly".  LEGISLATION CITED: Corporations Act, 2001 (Cth), s 459G - Building and Construction Industry Security of Payment Act 1999, s 8(2)(b)
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  • 28th October 2002
    Touma v Gold Holdings [2002] NSWSC 1027
    Security for costs of appeal -  threshold requirement of special circumstances - discretionary power
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  • 28th October 2002
    Touma v Gold Holdings [2002] NSWSC 1138
    Leave to discontinue appeal - terms of leave - indemnity costs and indemnity by solicitor to pay those costs - s 76C and Pt 52A r 43 provide independent remedies. ACTS CITED: Supreme Court Act 1970, s 76C. - Supreme Court Rules 1970, Pt 52A r 43.
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  • 18th October 2002
    Beckhaus v Brewarrina Council [2002] NSWSC 960
    Contracts - Building, Engineering and related contracts.Summary judgment application in respect of a progress claim under CL42.1 of AS 2124-1992. Superintendent fails to deal with claims within time. Contractor fails to supply statutory declaration as to payment of subcontractor. Held amount of progress claim due. - Progress claim also made under the Building Construction Industry Security of Payment Act 1999. Held claim under statutory scheme and under contract can be made at same time in one document.
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