Australia (New South Wales) Cases

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  • 13th September 2002
    De Martin & Gasparini v Energy Australia [2002] NSWCA 330
    BUILDING AND CONSTRUCTION CONTRACT - statutory construction - s14(3) Contractors Debts Act 1997 - attachment order - two stage process - whether the court is required to first assess the claim on the face of the application and then exercise a discretion of whether to make the order after considering other relevant evidence LEGISLATION CITED: Building and Construction Security of Payment Act 1999 (NSW) - Contractors Debts Act 1997  -NSW) ss5-9; s14 - Interpretation Act 1987 s33 - Residential Tribunal Act 1998 s63(2)
  • 19th August 2002
    Peninsula Balmain P/L v Abigroup Contractors P/L [2002] NSWCA 270
    PRACTICE AND PROCEDURE - STAY OF PROCEEDINGS - INTERLOCUTORY APPLICATIONS - ABUSE OF PROCESS - Proceedings struck out of list for Plaintiff's default in complying with Court's directions - application to restore dismissed because default had not been rectified - Plaintiff makes second application to restore after default rectified - whether second application is an abuse of process - principles discussed - Nominal Defendant v Manning (2000) 50 NSWLR 139 explained and distinguished.  HELD:  As a general rule: (i)       when proceedings have been struck out under Part 13 r.3 of the District Court Rules or stayed under Part 33 r.6 of the Supreme Court Rules an application to restore the proceedings or lift the stay should only be made when the Plaintiff's default has been cured; (ii)      if an application is dismissed because...
  • 26th July 2002
    Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd [2002] NSWCA 238
    Building and Construction Industry Security of Payment Act 1999 - Interpretation Act 1987
  • 3rd July 2002
    Peninsula Balmain P/L v Abigroup Contractors P/L [2002] NSWCA 211
    CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - Australian Standard General Conditions of Contract AS2124-1992 - Position of superintendent - Whether agent of principal - Whether power to extend time continues after termination of contract - Whether builder's entitlement to payment for variation depended on compliance with clause 40.2 TRADE PRACTICES - Misleading conduct - Must be apt to mislead in some non-trivial respect - Non-disclosure by principal of agreement with superintendent - Agreement, on true construction, has no relevant impact on exercise of superintendent's functions - Circumstance that commercial people may think otherwise does not make non-disclosure misleading - Whether misleading conduct either by "doing" or "refraining" - Significance of non-disclosure being "inadvertent". LEGISLATION CITED: Trade Practices Act 1974 (Cth) ss.4, 52
  • 11th June 2002
    Tooma v Eaton [2002] NSWSC 514
    Corporations Law. Application to set aside statutory demand under s 459G of the Corporations Act. Claim that s 14 of the Building and Construction Industry Security of Payment Act 1999 meant that there was no genuine dispute. Held s 14 did not affect the matter and demand set aside.
  • 14th May 2002
    Solarite v York [2002] NSWSC 411
    CORPORATIONS - winding up - application to have statutory demand set aside - low threshhold applicable in such cases discussed - demand set aside ACTS CITED: Corporations Act 2001 (Cth)  
  • 9th May 2002
    Hawkins Construction (Australia) Pty Ltd v Macs Industrial Pipework Pty Ltd [2002] NSWCA 136
    Contracts - whether Building & Construction Industry Security of Payment Act 1999 applied to contract entered into after commencement of the Act - whether payment claim satisfied requirement of the Act - Corporations - whether employed solicitor may sign a statutory demand on behalf of client   Building and Construction Industry Security of Payment Act 1999, s5, s7, s13, Schedule 2 Corporations Act 2001 (Cth), s459E
  • 7th May 2002
    Jemzone v Trytan [2002] NSWSC 395
    CORPORATIONS - statutory demand - genuine dispute and offsetting claim - proprietor claims variation credits and compensation for delay - genuine dispute or offsetting claim established - BUILDING & CONSTRUCTION - statutory entitlement to make payment claim for progress payment - invoice for final account held not to be claim for progress payment - requirements for valid payment claim under Building and Construction Industry Securities of Payment Act 1999 (NSW) ACTS CITED: Building and Construction Industry Securities of Payment Act 1999 (NSW) ss 3, 8, 13, 14 - Corporations Act 2001 (Cth) ss 459G, 459H
  • 28th November 2001
    Toorallie Pty Ltd v Stuart Alexander Black [2001] NSWSC 1088
    CORPORATIONS - application to set aside statutory demand - whether genuine offsetting claim pursuant to s.459H - debt owed to partnership of three persons - claim for unliquidated damages sought to be offset - allegedly offsetting claim in respect of actions of one of present partners when employee for which all then partners allegedly responsible, including remaining present partners ACTS CITED: Fair Trading Act 1987 - Employees Liability Act 1991 - Corporations Act 2001
  • 18th September 2001
    Hawkins Construction v Macs Industrial Pipework [2001] NSWSC 815
    STATUTES - interpretation - Building and Construction Industry (Security of Payments) Act 1999 NSW - whether Act applies to sub-contracts when head contracts procede the ActCORPORATIONS - statutory demands - demand signed by employed solicitor of firm acting for creditors - whether effective ACTS CITED: Building and Constructions Industry (Security of Payments) Act 1999 (NSW) s5, s6, s13(2)(a)&(c), Schedule 2 - Companies (New South Wales) Code - Corporations Law s459E(2)(f), s459H(2),(3) & (5)