Australia (New South Wales) Cases

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5th November 2014
Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534

Building and Construction - first adjudicator unable to assess defendant's delay damages claim on evidence before him - whether an issue estoppels arose - whether further adjudication application for same delay damages an abuse of process

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22nd October 2014
Eastland Truss & Timber Pty Limited v Matthew John Byrnes t/as Qualibuilt Constructions [2014] NSWSC 1461

Building and Construction – whether adjudicator complied with obligations under the Building and Construction Industry Security of Payment Act 1999 in making determination – whether jurisdictional error Legislation Cited: Building and Construction Industry Security of Payment Act 1999

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20th October 2014
Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445

Adjudication applications - whether there was a valid construction contract between the parties - where name in contract not the same as name on adjudication application - where invoices issued in a different name to the name in the construction contract - whether correct specification of ACN and ABN evidence an intention that the first defendant be "Contractor" to the construction contract – whether sufficient to show construction contract between the Parties

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16th October 2014
Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413

Building and Construction Industry Security of Payment Act 1999 (NSW) - application for declarations that two adjudication determinations concerning same payment claim void - validity of payment claim - whether one-off payment due under contract after termination a "progress payment" capable of supporting a payment claim - whether reference date fixed by contract or s 8(2)(b) - effect of termination before contractual reference date arises – whether party entitled to withdraw adjudication application under s 26 and file new adjudication application - whether jurisdictional error where adjudicator failed to consider all claims and submissions – whether denial of natural justice where adjudicator decided matter on basis not put by either party

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27th August 2014
Johnston v Lianda Constructions Pty Ltd [2014] NSWSC 1178

whether the Magistrate properly applied the test for summary judgment - whether there was a triable issue - application for leave to appeal from a costs order in the Local Court

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8th August 2014
Seabreeze Manly v Toposu [2014] NSWSC 1097

Payment claims - whether there was a 'construction contract' in accordance with the Building and Construction Industry Security of Payments Act 1999 (NSW), s4 - definition and construction of 'construction contract' - definition and construction of 'arrangement'

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8th August 2014
Bruno Pisano -v- Georgia Dandris [2014] NSWSC 1070

Home Building Act 1989 (NSW) ss 18B and 18E - defective work - claim for breach of statutory warranties by owner-builder - whether work performed in a proper and workmanlike manner - whether materials used in construction were suitable for the purpose for which they were used - whether dwelling reasonably fit for occupation as a dwelling - assessment of damages for breach of statutory warranties

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31st July 2014
Kingston Building (Australia) v Dial D [2014] NSWSC 1031

Application to stay proceedings under a construction contract and winding up proceedings pending outcome of arbitration application - where winding up proceedings involve the same parties and are based upon a Judgment debt between the parties - where undertaking given not to call on loans - whether overlap between winding up proceedings and arbitration - whether in public interest - whether additional order for security for costs ought be granted if winding up proceedings are stayed

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14th July 2014
Dewu Pty Ltd v Fabiano [2014] NSWSC 943

Adjudication applications - where adjudicator makes an error within jurisdiction - whether error as to the terms, construction or application of the construction contract is an error within jurisdiction – whether adjudicator erred in any event.

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4th July 2014
PPK Willoughby v Eighty Eight Construction [2014] NSWSC 942

Whether costs should follow the event - where notice of motion not pressed at hearing - where notice of notion unlikely to have been brought if successful party had complied with notice to produce served on them prior to filing of notice of motion - where notice of notion unlikely to have been brought if appropriate response had been given to letter seeking financial information prior to filing notice of motion.

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3rd July 2014
N Moit & Sons (NSW) v Denham Constructions [2014] NSWSC 905

Application for interlocutory injunction dismissed with costs as between the plaintiff and the first and second defendants. No orders as to costs as between the plaintiff and the third defendant.

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27th June 2014
Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2) [2014] NSWSC 840

judicial review - grounds of review - Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination - whether identity of parties to construction contract a jurisdictional fact – whether decision by adjudicator as to identity of contracting parties reviewable for jurisdictional error – distinction between determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact - whether denial of natural justice - whether adjudicator took into account all relevant factual matters

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19th June 2014
Cornerstone Danks Street v Parkview Constructions [2014] NSWSC 866

Adjudication determinations - application for declaration that adjudicator's determination is void – whether adjudicator failed to comply with statutory obligation imposed by s 21(3) of the Building and Construction Industry Security of Payments Act 1999 (NSW) - whether determination void where as at the date by which determination was to be made not all matters in dispute had been decided.

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11th June 2014
PPK Willoughby v Eighty Eight Construction [2014] NSWSC 760

Building contracts - Adjudication determinations – whether adjudicator's determination is void for failure to exercise the power given to him under the Building and Construction Industry Security of Payments Act - whether adjudicator abrogated power by accepting the valuation assessed by the Superintendent

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4th June 2014
FAL Management Group v Denham Constructions [2014] NSWSC 747

Building contracts - adjudication determinations – whether plaintiff can appropriate payment made in respect of an earlier adjudication determination against a later payment claim Procedure - interlocutory injunctive relief - whether as a matter of discretion relief should be granted Procedure - costs - general rule costs follow the event

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11th April 2014
Nefiko Pty Ltd v Statewide Form Pty Ltd [2014] NSWSC 442

Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether denial of natural justice - jurisdiction of adjudicator – whether adjudicator took into account all relevant factual matters.

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4th April 2014
Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382

Whether settlement deed a "construction contract" - whether payment under that deed a "progress payment" - Contract - implied terms - whether an implied term that parties deal with each other in good faith and cooperate - Unconscionable Conduct - requirements for conduct to be unconscionable. Procedure - civil - whether the court should permit party to amend its claim - effect of delay - requirement that responding party have sufficient time to respond.

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24th February 2014
Anderson Street Banksmeadow Pty Ltd v JCM Contracting Pty Ltd [2014] NSWSC 102

Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether plaintiff denied natural justice - whether denial of natural justice material to determination of adjudicator Legislation

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24th January 2014
Burrell v JGE Machinery [2014] NSWSC 32

Injunction to restrain enforcement of adjudication determination granted on condition as to payment in of adjudicated amount.

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20th January 2014
Geotech v Northwest Civil Construction Group [2014] NSWSC 8

Practice & Procedure - application to stay execution of judgment - whether serious question to be tried - balance of convenience

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16th December 2013
State Water Corporation v Civil Team Engineering Pty Ltd [2013] NSWSC 1879

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adjudicator failed to accord natural justice - whether adjudicator failed to exercise powers in good faith - whether adjudicator committed jurisdictional error.

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13th December 2013
Dial D v Kingston Building [2013] NSWSC 1846

Building & Construction - Building contracts- Payment - Final certificate - Contracts - interpretation - whether final certificate issued in time - corresponding date rule

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14th November 2013
Draybi One Pty Ltd v Norms Carpentry & Joinery Pty Ltd [2013] NSWSC 1676

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - - determination of reference date - whether two identical payment claims were in respect of the same reference date - whether the Act precludes service of second payment claim.

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5th November 2013
TQM Design and Construct Pty Ltd v Department of Finance and Services [2013] NSWADT 249

Home building - disciplinary action - breach of statutory warranty - improper conduct – penalty

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28th August 2013
Dial D Pty Ltd as trustee for the Smith Street Unit Trust v Kingston Building (Australia) Pty Ltd [2013] NSWCA 277

Contracts - building, engineering and related contracts - the contract - construction of contract - whether further progress claim could be made - whether Superintendent entitled to issue progress and other payment certificate in month when no work done and contractor did not issue progress certificate - whether Superintendent's progress certificate void Legislation Cited: Building and Construction Industry (Security of Payments) Act 1999

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23rd August 2013
Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271

Appeal and New Trial - procedural fairness - where request for adjournment and transfer of trial to another location refused - where defendant (now appellant) did not attend - whether violation of the hearing rule established

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23rd August 2013
NSW Land and Housing Corporation v DJs Home and Property Maintenance Pty Ltd (in liquidation) [2013] NSWSC 1167

Corporations - Winding up - Corporations Act 2001 (Cth) ss 500(1), 501, 569(1) - Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) Div 2A ss 26A, 26B, 26C ("the SoP Act") – Contractors Debts Act 1997 (NSW) ss 5, 6, 7, 8, 9(1), 11(1) ("the CD Act") - whether service of a payment withholding request under s 26A of the SoP Act on a company creates a charge over the monies retained in favour of the claimant - Held no charge created – whether service of a payment withholding request is an attachment put in place against the property of the company within s 500(1) of the Corporations Act

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21st August 2013
Lend Lease Project Management & Construction (Australia) Pty Ltd v Kellogg Brown and Root Pty Ltd [2013] NSWSC 1142

Contract - construction - plaintiff and defendant parties to professional services agreement – whether clause providing for the limitation of defendant's liability to plaintiff void for uncertainty – whether condition precedent to limitation of liability that plaintiff take out insurance - whether condition precedent satisfied - whether and to what extent liability of plaintiff to defendant limited

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28th June 2013
Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 842

Procedure - duty to opponent – communications with the Court - Bar Rule 53 - Solicitors Rule 23

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20th June 2013
NC Refractories Pty Ltd v Consultant Bricklaying Pty Ltd [2013] NSWSC 842

Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) ss 4, 8, 13(5) - whether a payment claim was based on a construction contract - the parties entered into a verbal construction contract and the defendant served a payment claim - the plaintiff stated it would pay a lesser amount and the defendant sent a revised invoice - the plaintiff contended that the second invoice was not based on the construction contract but on a later independent arrangement arising out of the parties' communications which was not a construction contract - the plaintiff contended that if the claim was based on a construction contract it was the second claim under it and was in respect of the same reference date of the first claim and was impermissible under s 13(5) - held that the second claim was made under the original contract which had been varied and that the second...

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19th June 2013
Sky General Services Pty Ltd V Bauen Constructions Pty Ltd [2013] NSWCA 191

Appeal - application for leave to appeal – no challenge to substantive result - contention that wrong conclusion reached on two of three alternative bases of determination - challenge to costs order only

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3rd June 2013
Ampcontrol SWG Pty Limited v Gujarat NRE Wonga Pty Limited (formerly Gujarat NRE FCGL Pty Limited) [2013] NSWSC 707

Building and Construction Industry - Building and Construction Industry Security of Payment Act - Where claimant serves a payment claim for a progress payment which does not disclose the precise contractual provisions relied. Where defendant fails to serve a payment schedule and then opposes judgment being entered on the basis that the terms of the contract do not entitle the plaintiff to the progress payment claimed – sufficient for the plaintiff to make a claim - defendant could raise the contractual issue in a payment schedule or adjudication response but is not entitled to do so now

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30th May 2013
Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 657

Remedies - adjudication determination void - jurisdictional error found in respect of only one issue - whether declaration that the determination is void should be made - whether certiorari should be issued setting aside or quashing the determination - whether, instead, that part of funds paid into Court not attributable to the jurisdictional error should be paid out to the claimant

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9th May 2013
State Asphalt Services Pty Ltd v Leighton Contractors Pty Ltd [2013] NSWSC 528

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether the Act should be interpreted so as to permit a party to move for judgment on first payment claim when a second identical payment claim has been issued and responded to with a payment schedule - whether bringing of proceedings is an abuse of the Act - whether bringing of proceedings is an abuse of process - whether party ought to be estopped from bringing proceedings - whether claimant engaged in misleading or deceptive conduct – whether counterparty can bring a cross-claim

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3rd May 2013
Anderson Street Banksmeadow Pty Ltd v Helcon Contracting Australia Pty Ltd [2013] NSWSC 491

Building and Construction – whether adjudication determination void - breach of natural justice - decision on basis not foreshadowed to the parties

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24th April 2013
Maxstra NSW Pty Ltd v Blacklabel Services Pty Ltd [2013] NSWSC 406

Building and Engineering Contracts - Building and Construction Industry Security of Payment Act 1999 - challenge to adjudication determination - claim for work either as variation or on quantum meruit - allegation that amount claimed is within the contract price - not a matter raised in payment schedule and inconsistent with contractual documents - allegation of denial of procedural fairness and error of law - no error of law involved in determination - alleged denial of procedural fairness had no practical impact - no jurisdictional error

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19th April 2013
Cranbrook School v JA Bradshaw Civil Contracting [2013] NSWSC 430

Building and Construction – construction contracts - Building and Construction Security of Payment Act 1999 (NSW)- meaning of "construction contract" - where no contract between the owner and subcontractor - whether there was an "arrangement" within the meaning of the Act

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17th April 2013
Creative Building Services v Jolene Investments [2013] NSWSC 391

Building and Construction – construction contracts - whether compliance with a contractual mechanism for claiming progress payments formed a condition precedent for payment of the entire contract sum

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11th April 2013
Class Electrical Services v Go Electrical [2013] NSWSC 363

Building and Construction - Building and Construction Security of Payment Act 1999 (NSW)- meaning of "construction contract" for the purposes of the Act - whether undertaking to supply related goods under an arrangement. Building and Construction - Construction Contracts -Adjudication of payment claims - whether claim in respect of one contract

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15th March 2013
Lahey Constructions Pty Limited v Newbold Bulk Haulage Pty Limited [2013] NSWSC 215

Building and Construction - adjudication - absence of natural justice - absence of procedural fairness - determination void

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8th March 2013
Lahey Constructions Pty Ltd v Trident Civil Contracting Pty Ltd [2013] NSWSC 176

Building and Construction - adjudication - requirement for a payment schedule – whether determination void - jurisdictional error – procedural fairness - natural justice

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25th February 2013
The Owners - Strata Plan 74635 v Buildcorp Group Pty Limited [2013] NSWCA 40

Practice and Procedure - no question of principle

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22nd February 2013
Relative Mirait Services Pty Ltd v Midcoast Under Road Boring Pty Ltd

Leave to Appeal - application for leave to appeal from Local Court to the Supreme Court - s 40(1), Local Court Act 2007 (NSW) - no question of mixed fact and law raised by the appeal - no denial of procedural fairness - magistrate correctly applied test for implying terms contained in Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 - magistrate did not rely on an implied term of law but correctly implied the term based on fact – magistrate did not draw an inference from facts that could not reasonably be drawn - leave refused

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14th February 2013
Williams v Concreting Services [2013] NSWSC 85

Building & Construction - Building Contracts - adjudication - interlocutory injunction – whether payment into court of adjudicated amount should be ordered

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25th January 2013
Prime City Investments Pty Limited v Paul Jones & Associates Pty Limited & anor [2013] NSWSC 2

Corporations - External administration - winding up in insolvency - creditor's statutory demand - setting aside - whether application to set aside served within time -where demand based on judgment arising from registration of adjudication certificate under Building and Construction Industry Security of Payment Act - whether offsetting claim

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14th December 2012
Nigro v EVS Group Pty Limited [2012] NSWSC 1545

Contract - Building and Construction Industry (Security of Payment) Act 1999 - entitlement of non- contractual party to recover moneys paid pursuant to a judgment filed under s 25 of the Act

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14th December 2012
Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571

Building and Construction - adjudication - whether determination void - jurisdiction - meaning of "subsequent named month" - bona fide attempt determine matter - procedural fairness

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4th December 2012
The Trustees of the Roman Catholic Church for the Diocese of Lismore v T F Woollam and Son [2012] NSWSC 1559

Building and Construction Industry Security of Payment Act 1999 (NSW) - jurisdictional error - whether adjudicator acted outside jurisdiction - whether payment claims complied with the requirements of s 13(4) and (5) of the Act - whether compliance with s 13(5) is jurisdictional

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30th November 2012
Avopiling (NSW) Pty Ltd v Menard Bachy Pty Ltd [2012] NSWSC 1466

Building and Construction Industry Security of Payment Act 1999 (NSW), adjudication determination, functions and duty of adjudicator, whether jurisdictional error, whether denial of natural justice, s 22(3), extent of requirement to provide reasons, procedural fairness, content of adjudication, whether erroneous consideration, misunderstanding and/or failure to address or consider matters, whether quash and/or void determination, no jurisdictional error exposed

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27th November 2012
IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439

Building and Construction - adjudication - jurisdictional error - construction contract – guarantee – indemnity

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20th November 2012
IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1394

Practice and Procedure – pleadings - amendment Building and Construction - construction contract - determination by adjudicator - natural justice

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1st November 2012
Leighton v Arogen [2012] NSWSC 1323

Administrative Law - Building and Construction Industry Security of Payment Act 1999 (NSW) - application to restrain enforcement of, and to quash, a determination of an adjudicator - whether adjudicator materially denied parties natural justice by permitting the defendant to advance its claim in a way the plaintiff was not able to answer - whether adjudicator acted outside jurisdiction - whether adjudicator's determination void - whether adjudicator erred in his approach to the application of s 20(2B) and 22(2)(c) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

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30th July 2012
Hanave Pty Ltd v Nahas Construction (NSW) Pty Limited [2012] NSWSC 888

Building and Construction Industry Security of Payment Act 1999 (NSW), Division 2A – Plaintiff (principal contractor) sought to quash adjudication determination obtained by the first defendant (respondent) and paid monies into Court pending its challenge - thereafter the second defendant (claimant), a creditor of the first defendant, which had itself obtained an adjudication determination against the first defendant served on the plaintiff a payment holding request under s 26A of the Act - later the plaintiff's challenge failed and the monies in Court were paid out to the first defendant discharging the plaintiff's debt to the first defendant - the second defendant contended that the plaintiff had discharged its obligation as principal contractor to pay money under a contract to the first defendant as respondent in contravention of a requirement under Division 2A of the Act and...

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30th July 2012
DJs Home and Property Maintenance v Dujkovic [2012] NSWSC 870

Procedure - Civil - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether service of payment claim was regularly effected - whether injunctive relief should be discharged or continued.

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28th June 2012
Ardnas (No 1) Pty Ltd v J Group (Aust) Pty Ltd [2012] NSWSC 805

Building and Construction - Application to set aside adjudication determination on the basis of no jurisdiction on the grounds that the defendant impermissibly made, and the determination dealt with, more than one payment claim in relation to the same reference date in conflict with ss 13(1), 13(5) and 17(1) Building and Construction Industry Security of Payment Act 1999 (NSW) - HELD - Whether more than one payment claim was made to be viewed as a matter of substance not form - multiple invoices capable of being one payment claim for the purposes of the Act

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24th April 2012
Machkevitch v Andrew Building Constructions [2012] NSWSC 546

Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - preliminary issue - whether court should leave matter to be disputed before another adjudicator - adjudication determination - meaning of "arrangement" - whether there was an "arrangement" amounting to a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) - whether the definition of "construction contract" requires that an "arrangement" must be legally enforceable - whether the defendant's attempts to press its payment claims against the plaintiff is an abuse of the processes of the Act. - [ESTOPPEL] - Issue estoppel - Anshun estoppel whether the defendant is estopped (by way of narrow or Anshun estoppel), by reasons of the determination of the first adjudicator, from pressing its claim under the alleged construction contract....

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9th March 2012
Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31

Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 – adjudication determination - whether Act applied to contract - definition of "related goods and services" Statutory Interpretation – Words and Phrases - Building and Construction Industry Security of Payment Act 1999 - "related goods and services" Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 – adjudication determination - application of s 7(2)(c) - whether calculation of consideration by reference to value of services provided. Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether adequate notification of adjudication application. Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether...

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8th March 2012
Grindley Constructions Pty Ltd v Painting Masters Pty Ltd [2012] NSWSC 234

Procedure - interlocutory injunction – to prevent filing of adjudication certificate in court pursuant to s 25 of the Building and Construction Industry Security of Payment Act 1999 - whether arguable case and balance of convenience - where evidence of defendant having no assets. Administrative Law – whether adjudicator had jurisdiction under Act - where application made out of time – where claim already lodged for same reference dates and work - whether denial of natural justice. BUILDING AND CONSTRUCTION - security of payment legislation – whether more than one adjudication application can be made for same reference dates and work.

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12th January 2012
Oppedisano v Micos Aluminium Systems [2012] NSWSC 53

Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) – whether contract was one for the carrying out of residential building work for the purposes of s 7(2)(b) - whether, had s 7(2)(b) been found to apply, relief in the nature of certiorari should be withheld on discretionary grounds.

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3rd January 2012
Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6

Administrative Law - Building and Construction Industry Security of Payment Act 1999 (NSW) - questions of administrative law - where adjudicator materially denied parties natural justice by determining his jurisdiction in a way for which neither party had contended and without giving them the opportunity to be heard - whether adjudicator's determination void. Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether s 7(1) authorizes more than one adjudication application to be made at the one time for the one payment claim.

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30th November 2011
Hanave Pty Ltd -v- Nahas Construction (NSW) Pty Ltd [2011] NSWSC 1476

Building Contracts - whether plaintiffs have established entitlement to summary judgment pursuant to the provisions of the Building and Construction Industry Security of Payments Act 1999 - Legislation Cited:Building and Construction Industry Security of Payments Act 1999, s 5, s 7, s 11, s 13, s 14, s 15, s 16, s 31 - Civil Procedure Act 2005, s 100, s 101 - Evidence Act 1995, s 160 - Home Building Act 1989 - Uniform Civil Procedure Rules 2005, r 14.28

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28th September 2011
TQM Design & Construct Pty Ltd & Anor v Romeo & Anor [2011] NSWDC 143

Building Contracts - whether plaintiffs have established entitlement to summary judgment pursuant to the provisions of the Building and Construction Industry Security of Payments Act 1999 - Legislation Cited:Building and Construction Industry Security of Payments Act 1999, s 5, s 7, s 11, s 13, s 14, s 15, s 16, s 31 - Civil Procedure Act 2005, s 100, s 101 - Evidence Act 1995, s 160 - Home Building Act 1989 - Uniform Civil Procedure Rules 2005, r 14.28

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28th September 2011
Power Serve v Powerline's Clearing Group [2011] NSWSC 1180

Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) – whether adjudicator erred by concluding that s34 of the Act rendered void certain provisions of construction contract - nature of requirement to 'consider' pursuant to s22 (2) – no requirement for 'consideration' to lead to a legally or technically correct answer. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)

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22nd September 2011
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303

Building and Construction - s 177 Conveyancing Act 1919 - "duty of care not to do anything on or in relation to land..." - whether developer's decision to use particular support system was "doing something" in relation to land – whether developer's decision to use particular support system was something that "removed the support provided by the supporting land" - whether developer's decision to use particular support system was made without exercising reasonable care - relevance of departure from construction certificate.....

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9th September 2011
Midcoast County Council trading as Midcoast Water v Reed Constructions Australia Pty Ltd [2011] NSWCA 268

Trade Practices - misleading or deceptive conduct - proceedings for payment of progress claim pursuant to s 13 of the Building and Construction Industry Security of Payments Act 1999 – whether appellant was misled in failing to serve in time a payment schedule under s 14 of the Act - whether findings of the primary judge supported by the weight of the evidence - whether primary judge considered irrelevant matters.

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9th September 2011
Clyde Bergemann v Varley Power [2011] NSWSC 1039

Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - judicial review - jurisdictional error - whether adjudicator fell into error by finding entitlement to payment other than in accordance with the mechanisms of the contract - natural justice and procedural fairness – whether adjudicator failed to afford natural justice or act in good faith by omitting reference to materials provided to him, but not brought to his attention by parties.

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2nd September 2011
Paul Michael Pty Ltd v J A Westaway & Son [2011] NSWSC 1076

Practice - security for costs – matters relating to exercise of discretion – where defendant's proposed cross-claim would cause issues in current proceedings to be litigated in any event - motion dismissed – no question of principle.

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25th August 2011
Owners Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000

Administrative Law - judicial review - jurisdictional error - natural justice or procedural fairness - relief - declaration - application for review of validity of an adjudication application pursuant to the Building and Construction Industry Security of Payment Act 1999 ('the Act') – declaration sought that the adjudicator's determination was void - application to have the adjudicator's decision quashed – adjudicator failed to consider adjudication respondent's submissions referred to in the reasons of the payment schedule – adjudicator misconstrued the Act and failed to accord procedural fairness to the plaintiff.

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8th August 2011
DJE Building Services Pty Ltd v Insurance Australia Limited [2011] NSWDC 95

Residential building work - Construction contract Arrangement - Recovery of progress payments - Legislation Cited: Home Building Act 1989 - Home Building Regulation 2004 - Civil Liability Act 2002 - Uniform Civil Procedure Rules 2005 - Building and Construction Industry Security of Payment Act 1999 Cases Cited: Olbourne v Excell Building Corp Pty Limited [2009] NSWSC 349 - Okaroo Pty Ltd v Vos Construction Joinery Pty Ltd [2005] NSWSC 45 - Re British Basic Slag Ltd's Agreements [1963] 1WLRS 727 - Levadetes Pty Ltd v Iberian Artisans Pty Ltd [2009] NSWSC 641

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21st June 2011
H M Australia Holdings Pty Limited v Edelbrand Pty Limited t/a Domus Homes & Anor [2011] NSWSC 604

Judicial review of Adjudication Determination - certiorari- "related goods and services" - construction contract- basic and essential requirements- jurisdictional error- jurisdictional fact- calculated otherwise than by reference to the value of the work- appointment of adjudicator notification of appointment Legislation Cited: Architects Act 2003 (NSW) Building and Construction Industry Security of Payment Act 1999 (NSW).

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16th June 2011
Jantom Construction Pty Ltd -v- S&V Quality Interiors (NSW) Pty Ltd [2011] NSWSC 670

Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

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12th May 2011
Duynstee v Dickins [2011] NSWSC 408

Appeal from Local Court - power to order stay of appeal until security for costs is given - principles applicable - failure by a party to meet previous cost orders - interests of justice - consideration of past and anticipated costs. Legislation Cited:Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 -District Court Act 1973 - District Court Rules 1973 - Local Court Act 2007 - Uniform Civil Procedure Rules 2005

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6th May 2011
Haypen Pty Limited -v- Tiltcon Pty Limited [2011] NSWSC 404

Procedure - application to strike out - Uniform Civil Procedure Rules 2005 r 12.7(1) - delay - ongoing failure to comply with order to provide security – whether proceedings should be struck out for want of Despatch Legislation Cited: uniform Civil Procedure Rules Building and Construction Industry Security of Payment Act 1999 (NSW)

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14th April 2011
Blazevic Holdings Pty Ltd v Warwick S Grave [2011] NSWSC 287

Legislation Cited:Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 Cases Cited: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353

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23rd March 2011
Siemens Ltd v Origin Energy Uranquinty Power Pty Ltd [2011] NSWSC 195

Arbitration - Arbitration agreement - whether parties agreed to submit dispute under s 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 to arbitration. BUILDING AND CONSTRUCTION CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - whether dispute under s 15(2)(a)(i) of the Act arbitrable - whether proceedings under s 15(2)(a)(i) should be stayed. Legislation Cited:Building and Construction Industry (Security of Payment Act) 1999 - Civil Procedure Act 2005 - Commercial Arbitration Act 1984 - Commercial Arbitration Act 2010 - Corporations Act 2001 (Cth) - Home Building Act 1989 - Industrial Relations Act 1996 - Insurance Contracts Act 1984 (Cth) - Trade Practices Act 1974 - Uniform Civil Procedure Rules

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21st March 2011
Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184

Evidence - witnesses - credibility; procedure - service - whether effective - consequence of not being wholly within premises and whether service occurred within office hours; Contract - building - whether contract provided a due date such that relief under Building and Construction Industry Security of Payment Act 1999 (NSW) was available - Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations (General) Regulations 2001 (NSW)

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16th March 2011
Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd & Anor [2011] NSWSC 165

Building and Construction Contracts - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether a decision by an adjudicator who does not have jurisdiction was a determination under s 22 – whether entitled to submit new claim under s 17 - whether adjudicator had jurisdiction to determine claim - whether construction work carried out outside NSW - Legislation Cited: Building & Construction Industry Payments Act 2004 (Qld) - Building & Construction Industry Security of Payment Act 1999 (NSW) - Jervis Bay Territory Acceptance Act 1915 (Cth)

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4th March 2011
Filadelfia Projects Pty Limited v Entirity Business Services Pty Limited & Anor (No 2) [2011] NSWSC 116

Contract - informal agreements -construction contracts - relevance of post contractual conduct in determining who the parties to the contract are – objective determination - contract found between builder and contractor, not developer and contractor - Procedure – adjudication application under Building & Construction Industry Security of Payment Act 1999 - natural justice - failure to supply same documents to adjudicator and opposing party - denial of natural justice – whether relief should be refused in circumstances where conduct not deliberate and issue determined on the merits by the court - abuse of process - deliberately withheld relevant documents from adjudicator – no duty of full disclosure in adjudication process - Legislation Cited: Building & Construction Industry Security of Payment Act 1999 (NSW) - Industrial Relations...

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17th February 2011
Cromer Excavations Pty Ltd v Cruz Concreting Services Pty Ltd [2011] NSWSC 51

Building and construction - progress payments - payment plan served on Defendants - failure of Defendants to provide payment schedule within time limited by Building and Construction Industry Security of Payment Act 1999 – Plaintiff serves notice of intention to make adjudication application - Plaintiff thereafter takes proceedings for debt – whether Plaintiff made an election. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 - Uniform Civil Procedure Rules

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6th December 2010
Steel v Beks [2010] NSWSC 1404

Building & Construction. Application to set aside determination under Building & Construction Industry Securty of Payment Act 1999. Finding by the court that payment claims and s17(2) notices not served. Determination set aside.

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6th December 2010
St Hilliers Contracting Pty Limited v Dualcorp Civil Pty Ltd [2010] NSWSC 1468

Contract – building, engineering and related contracts – Building and Construction Industry Security of Payment Act 1999 ss 10(1), 11(1), 11(1)-(2), 22(1)-(4) – the plaintiff challenged an adjudication determination in favour of the first defendant by the second defendant on grounds that the second defendant committed jurisdictional error and did not afford it natural justice because she did not have regard to material properly before her and determined the date for payment for the adjudicated amount on a basis which was not the subject of submission by either party – HELD – that both complaints were made out – there should be an order in the nature of certiorari quashing and setting aside the adjudication determination - Legislation cited: Building and Construction Industry Security of Payment Act 1999 (NSW)

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6th December 2010
Steel v Beks [2010] NSWSC 1405

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. - Proceedings not commenced in time. Discussion of whether s29 of Acts - Interpretation Act 1901 or s160 of Evidence Act applies.

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26th November 2010
Siteberg v Maples [2010] NSWSC 1344

Procedure - application for vexatious proceedings order pursuant to s 8 - Vexatious Proceedings Act - whether proceedings are vexatious - whether vexatious proceedings were instituted or conducted frequently - meaning of "frequently". - Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) - Corporations Act 2001 (Cth) - Vexatious Proceedings Act 2008 (NSW)

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23rd November 2010
Cardinal Project Services v Hanave [2010] NSWSC 1367

Building and Engineering Contracts – adjudication – determinations – validity – where prior adjudication made on same payment claim – where prior - determination declared void – whether plaintiff could make second adjudication - application – whether second application made within time allowed by s 26(3) – whether second determination void – judicial review – Building and Construction - Industry Security of Payment Act 1999 (NSW) s 26.

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18th November 2010
Bauen Constructions v Westwood Interiors [2010] NSWSC 1359

Administrative Law – judicial review – jurisdictional error – natural justice – sufficiency of reasons. - Administrative Law – prerogative writs and orders – certiorari – discretionary factors. Contract – building, engineering and related contracts – remuneration – statutory regulation of entitlement to and recovery of progress payments – adjudication of payment claims – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 9, 10, 20, 22. - Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Supreme Court Act 1977 (NSW)

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16th November 2010
Grave v Blazevic Holdings [2010] NSWCA 324

Appeal – civil – judgment – whether applicant had shown arguable defence – whether primary judge erred in construction and application of ss 14 and 15 – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 14, 15, 32.

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12th November 2010
Parsons Brinckerhoff Australia Pty Ltd v Downer EDI Works Pty Ltd [2010] NSWSC 1295

Building and Construction – Building and Construction Industry Security of Payment Act 1999 (“the Act”) s 31 – meaning of the phrase “ordinary place of business” – whether an address where the offices of its Chief Executive Officer and Chief Financial Officer were situated and from where business management and support services, finance support services, safety and environment and human resources management were provided for the defendant’s business nationally was its ordinary place of business – HELD – held that the place was the defendant’s ordinary place of business - Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth)

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29th October 2010
Reed Constructions Australia Limited v MidCoast County Council trading as

Trade Practices Act - Whether conduct misleading or deceptive - Alleged half-truths - Consideration of authorities - Proceedings pursuant to the Building and Construction Industry Security for Payments Act - Whether plaintiff mislead defendant causing it not to put on payment schedule in response to plaintiff's payment claim LEGISLATION CITED: Building and Construction Industry Security for Payments Act 1999 (NSW) - Trade Practices Act 1974 (Cth)

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29th October 2010
Paul Michael Pty Ltd (subject to deed of company arrangement) v Urban Traders Pty Limited [2010] NSWSC 1246

Building and Construction – application for stay of execution of judgments obtained pursuant to adjudications made under Building and Construction Industry Security of Payment Act 1999 and consequential orders – defendant owned land and engaged plaintiff as builder under construction agreement – both parties alleged breaches of construction agreement – plaintiff obtained judgments pursuant to adjudications and consequential orders – plaintiff subsequently subject to deed of company arrangement – defendant lodged proof of debt with deed administrator – proof of debt pending determination......1

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24th September 2010
Chase Oyster Bar v Hamo Industries [2010] NSWSC 1167

Administrative Law - prerogative writs and orders - certiorari - where s 17(2)(a) of Building and Construction Industry Security of Payment Act nor complied with - whether relief in the nature of certiorari against adjudicator's determination should be granted - discretionary considerations - certiorari granted - Supreme Court Act 1970 (NSW) s 69. - Legislation cited: Building and Construction Industry Security of Payment Act 1999 (NSW) - Suitors' Fund Act Supreme Court Act 1970 (NSW)

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24th September 2010
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190

Administrative Law – judicial review – grounds of review – Building and Construction Industry Security of Payment Act 1999 – whether an incorrect determination by an adjudicator that a s 17(2) notice was served within the prescribed time amounts to jurisdictional error – whether Brodyn Pty Ltd v Davenport correctly decided. -ADMINISTRATIVE LAW – prerogative writs and orders – certiorari – Building and Construction Industry Security of Payment Act 1999 – whether determinations by adjudicators amenable to orders in the nature of certiorari for jurisdictional error – whether adjudicators are exercising a statutory function – whether there is a superadded requirement that an adjudicator is subject to a “duty to act judicially” before being amenable to prerogative writs. - ADMINISTRATIVE LAW – judicial review...

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17th September 2010
Proprietors of Strata Scheme 3618 v Costin Roe Consulting [2010] NSWSC 1049

Administrative Law - residential building work - supervision and co-ordination - quantum meruit. - Legislation Cited: Home Building Act 1989 - Local Court Act 2007 - Building and Construction Industry Security of Payment Act 1999

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30th August 2010
Agusta Industries v Niclad Constructions [2010] NSWSC 925

Building and Construction - Building and Construction Industry Security of Payment - Act 1999 - whether adjudicator's determination void for alleged failure of receipt of adjudication application - whether presumption of receipt of postal article - whether a denial of natural justic LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Evidence Act 1995 - Acts Interpretation Act 1901 (Cth)

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27th August 2010
Lanmac (NSW-ACT) Pty Limited v Andrew Bruce Wallace & Ors [2010] NSWSC 976

Building and Construction Industry Security of Payment Act 1999 - Plaintiff against whom a judgment has been entered who brings proceedings seeking to prevent a party from relying on that judgment without seeking to set aside the judgment is aware that section 25 (4) of the Act requiring security will not be triggered Court cautious to ensure justice between the parties but also to ensure that the legislation under which the application is brought is not circumvented LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Civil Procedure Act 2005 (NSW)

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6th August 2010
Rahme Civil Pty Ltd v Zeater & Sons Pty Ltd [2010] NSWDC 161

Building contracts - Construction contract for residential units - Demolition/excavation work - Damage to building by contractor's truck - Negligence of truck driver - Payment claims - Multiple payment claims - Need for a payment schedule to dispute claim Statutory debt - Unlicensed contractor - Whether contract enforceable - Quantum meruit - Status of contractor's unpaid progress claims - Cross-claim by builder - Cost of rectification work to building - Whether damage to building caused by truck incident - Whether additional work causally related to truck incident - Set-off of separate verdicts - Costs

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29th June 2010
Lipman Pty Limited v Emergency Services Superannuation Board [2010] NSWSC 710

Contract – construction – building contract – alternative dispute resolution provision – where the parties refer disputes for expert determination which the provision provides is final and binding but subject to an appeal procedure which involves an attempted negotiated settlement – where the provision provides that the expert determination is to be final and binding unless reversed or overturned or otherwise changed under such procedure – where such procedure did not result in reversal, overturning or change – whether the parties intended the same claims to be determined by different tribunals – held expert determination binding

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16th June 2010
Neumann Contractors v Wyong Shire Council [2010] NSWSC 614

Action by council to recover alleged overpayment from contractor – contract to rehabilitate and redevelop disused landfill – where specification required plaintiff to excavate to ‘top of waste profile’ –where council claimed that contractor over-excavated – whether contract required or permitted contractor to excavate existing fill beyond the top of waste profile if the material then at the top of waste profile met the specification requirements for cover soil – whether contract required or permitted the contractor to excavate more than 100mm below the top of waste profile if additional excavation was necessary to ensure the cover soil layer met the specification requirements – whether excavation beyond the top of waste profile required council approval – whether council gave approval – whether excavation in fact performed affected...

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14th May 2010
Allpro Building Services Pty Limited v Micos Architectural Division Pty Limited & Ors [2010] NSWSC 474

Natural justice - Reasonable apprehension of bias - Building and Construction Industries Security of Payments Act 1999 Adjudicator has a history of disputation with plaintiff concerning plaintiff having refused to pay adjudicator's fees - Adjudicator refuses to accept challenge to his right to determine the matter - Critical significance that adjudicators determine the adjudications which come before them, without regard to extraneous circumstances as for example private communications with their colleagues about one or other of the parties LEGISLATION CITED: Building and Construction Industries Security of Payments Act 1999

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11th May 2010
Allpro v Micos [2010] NSWSC 453

Building and Engineering Contracts - interlocutory injunction – restraining enforcement of determination of adjudicator - apprehension of bias - denial of natural justice - extension of time for adjudication - short time limit for agreement - no actual or implied agreement to extension - payment of adjudicator's fees. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)

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6th May 2010
CC No 1 v Reed [2010] NSWSC 294

Contracts. Building, engineering and related contracts. Progress claims under the Building and Construction Industry Security of Payment Act 1999 Claim that later claim was an abuse as it reagitated matters the subject of earlier claims. - No adjudication of earlier claims. - Held in the circumstances no abuse. - Proceedings dismissed.

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21st April 2010
Chase Oyster Bar v Hamo Industries [2010] NSWSC 332

Building and Engineering Contracts – challenge to adjudicator’s determination – whether open for adjudicator to conclude contract was wholly in writing or relevant terms were written – where notice of intention to apply for adjudication of payment claim not given within time limit – whether jurisdictional error by adjudicator in concluding that notice was served within time limit – preliminary questions for determination – date of service on plaintiff of first defendant’s payment claim – date for payment of progress payment – date by which first defendant was required to give notice of intention to seek adjudication – date on which actual notice was given – whether it was open to adjudicator to conclude that first defendant’s notice had been served in accordance with statutory time requirements – Building...

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16th April 2010
Watpac Constructions v Austin Group [2010] NSWSC 347

Building and Construction – where adjudication determination based on payment claim that included impermissibly re-agitated claims – consequences of issue estoppel and abuse process – whether determination void or whether enforcement of rights may be restrained to extent of invalidity – where adjudication determination involved substantial denial of natural justice – consequences of denial of natural justice – whether determination void – whether determination wholly void or void to extent of denial – Building and Construction Industry Security of Payment Act 1999 (NSW).

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19th March 2010
Watpac Constructions v Austin Corp [2010] NSWSC 168

Building and Engineering Contracts – Building and Construction Industry Security of Payment Act 1999 – validity of second adjudication determination –where payment claim for amounts the subject of previous adjudication determination – where determination by previous adjudicator that defendant not entitled to amounts - claimed – whether valid payment claim – whether subsequent claim before second - adjudicator precluded by principles of issue estoppel or principles of abuse of - process – whether plaintiff denied procedural fairness. - Estoppel – issue estoppel – whether earlier determination created issue estoppel – whether abuse of process for defendant to reagitate claim leading to second - adjudication determination.

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4th March 2010
Olympia Group Pty Ltd v Tyrenian Group Pty Ltd [2010] NSWSC 319

Contracts – building, engineering and related contracts – general contractual principles – parties – whether the first plaintiff or Olympia Group (NSW) Pty Limited (“Olympia NSW”) was party to the construction contract within the meaning of s 4 of the Building and Construction Industry Security of Payment Act 1999 (“the Act”) where Olympia NSW was the head contractor, where Olympia NSW had made payments to the defendant and where the first plaintiff was not carrying on business in the building and construction industry – whether the payment claim was effectively served on the plaintiffs – whether the payment claim was an abuse of the processes of the Act

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23rd December 2009
Filadelfia Projects Pty Limited v EntirITy Business Services Pty Limited [2009] NSWSC 1468

Administrative Law - Particular Tribunals or Bodies - Injunctions sought to restrain the defendant from seeking adjudication of a payment claim under the Building and Construction Industry Security of Payment Act 1999 - plaintiff party to contract with third party who subcontracted to defendant - claims made by defendant on third party under the Act - upon termination of subcontract, defendant made claim upon plaintiff - whether an abuse of the processes of the Act

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17th December 2009
The Owners Strata Plan 56587 v Consolidated Quality Projects [2009] NSWSC 1476

Building Contracts - Building and Construction Industry Security of Payment Act 1999 (NSW) - progress claim served on superintendent - whether service of progress claim on superintendent that is also a payment claim under the Act constitutes valid service of payment claim on owners corporation for the purpose of s 31 - no stipulation in contract authorising service of payment claim on superintendent on behalf of owners corporation - whether as a matter of practice parties objectively intended that progress claims that are also payment claims under the Act may be delivered as one document to superintendent. Legislation cited: Building and Construction Industry Security of Payment Act 1999 (NSW)

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17th November 2009
Allpro Building Services v C&V Engineering Services [2009] NSWSC 1247

Building and Engineering Contracts - Building and Construction Industry Security of Payment Act - validity of payment claim - whether made with respect to a reference date the subject of previous claims - whether this aspect of Brodyn decided incorrectly - whether estoppel created by adjudication of earlier payment claims - whether claims replicated by separate entities - whether an abuse of process.

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20th October 2009
Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337

Administrative Law - Administrative tribunals- Consumer, Trader and Tenancy Tribunal ("CTTT")- jurisdiction of courts and CTTT- s 22(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act")- limited jurisdiction of courts where same "issue" to be heard in CTTT- whether respondent's claim of overcharging in CTTT is the same "issue" as claim in the District Court under the Building and Construction Industry Security of Payment Act 1999 ("SOPA"). CONTRACTS- building, engineering and related contracts- remuneration- jurisdiction of courts and CTTT- whether respondent's claim in CTTT is the same "issue" as claim in the District Court- s 22(3) of the CTTT Act. CONTRACTS- building, engineering and related contracts- remuneration- interpretation and application of s 7(2)(b) of the SOPA- whether right of a contractor to proceed under s 15(2)(a)(i) to obtain summary judgment...

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15th October 2009
Urban Traders v Paul Michael [2009] NSWSC 1072

Building and Engineering Contracts – Building and Construction Industry Security of Payment Act – whether valid payment claim – whether payment claim sought to reagitate issues decided in earlier adjudication determination – whether issue estoppel arises from adjudication determination – whether payment claim sought to reagitate issues raised in previous payment claim – whether statutory right to payment enlivened – whether issue estoppel arises from statutory right – whether abuse of process – whether adjudicator can determine claims for lost profit or cost of re-pricing or interest – whether issues appropriate to be determined by an adjudicator.

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28th September 2009
Parkview v Fortia [2009] NSWSC 1065

Building and Engineering Contracts - Building and Construction Industry Security of Payment Act 1999 - whether 'construction contract' existed - whether payment claim valid. - PRACTICE - summary judgment - whether defence 'hopeless'.

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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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12th June 2009
Stallion Civil Group v Tresedar Pty Ltd [2009] NSWDC 125

Building and Engineering Contracts - Remuneration - Progress payments - Payment claims - Requirements for - Validity - Need for a payment schedule to dispute claim - Statutory debt for failure to reply with a payment schedule - Whether "construction work" - Meaning of "construction contract" - Arrangement for developer/owner to pay sub-contractor for work carried out under sub-contract with builder - Whether arrangement a construction contract - Defences to claim - Defence of misleading or deceptive conduct - Relevance of claim not made "bona fide" - Reliance - Loss or damage

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15th May 2009
Lucas Stuart v Hemmes Hermitage [2009] NSWSC 477

Building and Construction Contracts - plaintiff served payment claim - whether defendant provided payment schedule - whether defence in these proceedings arises under the contract. BUILDING AND CONSTRUCTION CONTRACTS - provision of payment schedule - whether can be provided by an agent - agent can only provide payment schedule where provision would bind principal.

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5th May 2009
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416

Contracts – building, engineering and related contracts – other matters – Building and Construction Industry Security of Payment Act 1999 – second payment claim for items the subject of a previous claim – second claim is precluded by principles of estoppel and the provisions of the Act – appropriate for the Court to intervene prior to an adjudication determination to prevent such a claim from proceeding - ESTOPPEL – issue estoppel – adjudication under Building and Construction Industry Security of Payment Act 1999

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1st May 2009
Olbourne v Excell Building Corp Pty Limited [2009] NSWSC 349

Contracts – building, engineering and related contracts – other matters – grounds upon which an adjudication determination can be reviewed – the existence of a construction contract under s 4 of the Building and Construction Industry Security of Payment Act 1999 is a basic and essential element of the Act – meaning of ‘arrangement’ in s 4 – facts and circumstances giving rise to an ‘arrangement’

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27th April 2009
Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320

Building and Construction Contracts – Adjudications under Building and Construction Industry Security of Payment Act – application for declaration that defendant builder is not entitled to adjudicated amounts and injunction restraining registration and enforcement of adjudication - whether agreement between plaintiff principal and defendant resulted in binding agreement whereby builder was not entitled to recover payment for certain additional works over and above an agreed sum, the value of which was included in adjudicated amount – if so, whether agreement was avoided by s 34 – whether subsequent agreement for settlement of proceedings 5158/08 on terms that an amount be paid into court pending outcome of proceedings precluded prosecution of a progress payment claim – if so, whether such agreement was avoided by s 34 – whether principal...

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24th April 2009
Duynstee v Dickens & Dickens [2009] NSWSC 292

contract for fire protection of boundary fence whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999

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15th April 2009
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

Contracts - Building and Construction Industry Security of Payment Act 1999 - progress claim for amounts the subject of a previous claim - adjudicator's determination that most of previous claim not maintainable - whether further claim precluded by provisions of the Act or principles of estoppel - Estoppel - issue estoppel - adjudication under Building and Construction Industry Security of Payment Act 1999

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15th April 2009
Appleby v Nellis [2009] NSWSC 299

Procedure - judgments and orders - enforcement of judgments and orders - application for judgment to be stayed - application dismissed SUMMARY The Defendant, a judgment debtor, sought a stay to the operation and enforcement of the judgment. The judgment was in respect of an undertaking under a Deed of Settlement and Guarantee and Indemnity which provided that on default the Defendant would consent to a judgment in favour of the Plaintiff. One arm of the Defendants defence was that she had started seperate proceedings against the Plaintiff for damages. She submitted also that she should be entitled to a stay if, as she contended, the Plaintiff was insolvent. The judge was referred to Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico & Ors [2004] NSWSC 344, but he considered that that case, in the context of the Act with which provided for a provisional, and...

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24th March 2009
Parkview Constructions Pty Ltd v Tayeh & Ors [2009] NSWSC 186

Corporations - voluntary administration - deed of company arrangement - deed provides for creation of creditors' trust and execution of related implementation deed and charge - all such steps taken immediately after deed became binding - creditor applies for order under s 445D terminating deed of company arrangement - but deed already terminated by s 445C(c) upon completion of specified steps - no capacity to terminate again - reliance by plaintiff on s 447A in submissions in reply - claim for order terminating deed ab initio - whether new case can be mounted in submissions in reply - whether, in any event, s 447A order could have effect of terminating deed of company arrangement ab initio - where independently created rights and obligations have arisen from creditors' trust and related implementation deed and charge - comment on use of Part 5.3A to create scheme of administration outside...

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20th March 2009
Thiess Pty Ltd & Anor v Lane Cove Tunnel Nominee Company Pty Ltd & Anor [2009] NSWCA 53

Contracts - construction contract - Building and Construction Industry Security of Payment Act 1999 - payment schedule - whether contract required a time for provision of payment schedule - contractual payment schedule replied to contractual progress payment claim - not to statutory payment claim - stated time was not for provision of statutory payment schedule.

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3rd March 2009
Thiess Pty Ltd & Anor v Zurich Specialties London Ltd & Anor [2009] NSWCA 47

Building and Engineering Contracts - Building and Construction Industry Security of Payment Act 1999 - whether Construction Risks Insurance Policy contained a "construction contract" INSURANCE - Construction Risks Insurance Policy - whether imposed an obligation on insured to perform construction work - whether obligation to take "reasonable precautions" simply a condition precedent to insurer's liability or whether it also gave rise to an enforceable promise to take those precautions.

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27th February 2009
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

Procedure – Costs – Discontinuance – Default provision for costs in UCPR 42.19 – Need for reason for departing from the default provision – Primary judge makes costs order in favour of discontinuing plaintiff – Whether decision vitiated by error – Re-exercise of discretion – Whether appropriate to determine outstanding questions of costs prior to considering costs order to be made on discontinuance – Whether circumstance that discontinuance was not tantamount to capitulation justified departing from the default provision – Reasonableness of commencement of proceedings challenged by defendant, and not resolved because of plaintiff’s decision to discontinue – Relevance of late application by defendant to amend defence.

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20th February 2009
Kittu Randhawa v Monica Benavides Serrato [2009] NSWSC 170

Building and Construction – adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW) - validity of adjudication – claim that adjudicator’s determination invalid because receipt of notice of adjudicator’s acceptance alleged not to have been received – establish that notice was posted and accepted that notice did not come to the attention of the plaintiff – distinction between non-delivery and not coming to the attention of the recipient – defendant has benefit of presumption of delivery which plaintiff did not rebut by showing non-receipt by recipient, as opposed to non-delivery – adjudication valid

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18th February 2009
Integral Energy Australia v Kinsley & Associates Pty Ltd [2209] NSWSC 64

Building & Construction - Building & Construction Industry Security of Payment Act 1999 (NSW) challenge to validity of adjudication determination on the basis that adjudicator failed to include the reasons for his determination under s 22(3)(b) of the Act - held that reasons given were sufficient

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11th February 2009
James v Ash Electrical Services Pty Ltd [2009] NSWSC 30

Corporations - winding up - alleged insolvency - application for dismissal of winding up application on grounds of want of prosecution or abuse of process - whether plaintiff dilatory so as to justify termination of proceedings - whether shown that plaintiff's purpose is otherwise than to prosecute application to conclusion

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4th February 2009
Diddy Boy v Design [2009] NSWC 14

Corporations Law. Application to set aside statutory demand under s 459G of Corporations Act. Genuine dispute and off-setting claim alleged. No sufficient evidence to establish an off-setting claim. Genuine dispute as to denial of natural justice in adjudication under Building & Construction Industry Security of Payment Act 1999 fails as plaintiff had lost proceedings to set aside the adjudication.

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24th December 2008
Zebicon Pty Ltd v Remo Construction Pty Ltd [2208] NSWSC 1408

Building and Construction - payment claim - served by fax - evidence that recipient machine faulty - whether payment claim "received"

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12th December 2008
Rubana Holdings Pty Limited v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405

Building and Construction - Adjudication application - whether determination void - whether adjudicator lacked jurisdiction to deal with application - abuse of process - whether a claimant under the Act can seek to enforce its claim concurrently by proceedings in court and by adjudication - Building and Construction Industry Security of Payment Act 1999.

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20th November 2008
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2008] NSWSC 1329

COSTS - security for costs - discretion - whether, if ordered, plaintiff able to pay security for costs - whether plaintiff's impecuniosity was caused by the defendant's conduct, the subject of proceedings - whether an order for security for costs would stultify proceedings - whether security for costs should be ordered against a party who is, in substance a defendant. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Corporations Act 2001 - UCPR

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6th November 2008
Remo Constructions P/L v Dualcorp P/L [2008] NSWSC 1172

CORPORATIONS - winding up - statutory demand - two demands by same alleged creditor - applications for orders setting aside demands - originating process contains claim for order in respect of one demand and claim for order in respect of other demand - single alleged offsetting claim advanced as ground for both orders - whether procedure regular LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999, s 25 - Corporations Act 2001 (Cth), ss 459E, 459G - Uniform Civil Procedure Rules 2005, rule 6.18(1)(a)

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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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4th July 2008
Thiess P/L v Lane Cove Tunnel Nominee Co P/L [2008] NSWSC 729

BUILDING AND CONSTRUCTION INDUSTRY (SECURITY OF PAYMENT) ACT 1999 (NSW) - Section 14(4)(b)(i) & (ii) - whether relevant construction contract requires different time for provision of payment schedule from 10 business days otherwise required LEGISLATION CITED: Building and Construction Industry (Security of Payment) Act 1999 NSW - Trade Practices Act 1974,

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18th June 2008
Richard Shorten v David Hurst Constructions P/L [2008] NSWCA 134

CONTRACTS – contract for construction of residential units, one of which intended to be developer’s residence – whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999 (NSW) STATUTORY INTERPRETATION – use of extrinsic material - Interpretation Act 1987 (NSW) ss 33, 34 LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s 15AB - Building and Construction Industry Security of Payment Act 1999 (NSW), s 7(2)(b) - Home Building Act 1989 (NSW), s 3(1) - Income Tax Assessment Act 1936-1970 (Cth) - Interpretation Act 1987 (NSW)

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12th June 2008
Pacific Islands Express P/Lv Empire Building Development P/L[2008] NSWSC 576

CORPORATIONS winding up in insolvency statutory demand requirement for an affidavit supporting an application to set aside a demand failure to satisfy "Graywinter principle" whether court may extend period for compliance with demand LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 23, 24, 25, 32 - Corporations Act 2001 (Cth), ss 459F, 459G

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11th June 2008
Calsun v Lovton (No 2) [2008] NSWDC 133

BUILDING & CONSTRUCTION - security of payment - costs of partially successful application LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

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11th June 2008
Ontrac v BHCF (No 2) [2008] NSWDC 132

BUILDING & CONSTRUCTION security of payment - judgment set aside - costs - refund of monies paid under judgment LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 - Uniform Civil Procedure Rules 2005

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5th June 2008
Richard Shorten v David Hurst Constructions P/L; David Hurst Constructions v R.W. Shorten [2008] NSWSC 546

Building and Construction Industry Security of Payments Act 1999 - Natural justice - Whether denial of natural justice could not possibly have made a difference to the outcome Materiality Nullus commodum capere potest de injuria sua propria principle

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16th May 2008
Calsun v Lovton [2008] NSWDC 74

BUILDING & CONSTRUCTION security of payment - payment claim for construction work - whether properly categorised as one for damages for breach of contract - claim for work undertaken during defects liability period - whether permitted by the contract LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

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16th May 2008
Ontrac v BHCF [2008] NSWDC 76

BUILDING & CONSTRUCTION security of payment - content of valid payment claim - service of payment claim- LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth) Evidence Act 1995

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9th May 2008
Brian Leigh Smith v Coastivity P/Ld [No.2] [2008] NSWSC 450

COSTS – follow the event – no question of principle. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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6th May 2008
Trysams P/L v Club Constructions (NSW) P/L [2008] NSWSC 399

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – adjudicator’s consideration of a issue not raised by parties – parties denied opportunity to put submissions on issue – whether issue material to determination – whether denial of natural justice – adjudicator’s failure to consider relevant contractual provisions – power of Court to order adjudicator to reconsider adjudication application. LEGISLATION CITED: - Building and Construction Industry Security of Payment Act 1999 - Building and Construction Industry Security of Payment Amendment Act 2002 - Civil Procedure Act 2005 - Supreme Court Act 1970

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28th April 2008
John Holland P/L v Made Contracting P/L [2008] NSWSC 374

CONSTRUCTION – CONTRACT – procedure for adjudication under Building and Construction Industry Security of Payment Act 1999 – whether withdrawal of adjudication application valid – whether adjudicator failed to determine adjudication application – whether entitlement to make new adjudication application established – whether claimant estopped from making new application – whether adjudicator’s determination of new application void – statutory constructionLEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

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11th April 2008
Brian Leigh Smith v Coastivity Pty Ltd [2008] NSWSC 313

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether a construction contract to which the Act applied existed – definition of “related goods and services” – whether consideration for related goods and services was calculated other than by reference to the value of the goods and services supplied – whether discretionary grounds exist to warrant withholding the grant of declaratory and injunctive relief. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (the Act) - Landlord and Tenant (Amendment) Act (1948) - Racial Discrimination Act 1975 (Cth) - Strata Titles Act 1969 -Workers Compensation Act 1987 (NSW)

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1st April 2008
Masterton Homes P/L v Palm Assets P/L [2008] NSWSC 274

Contract Construction and interpretation of contracts Equity Rectification General principlesRequirement of clear and convincing proof of a common intention inconsistent with the words deliberately employed Evidence Admissibility of post-contract communicationsAdmissibility of post-contract admissions Distinction between evidence admissible upon construction of contract as opposed to rectification Contract under consideration set out in undertaking given to the Court Onus of proofLEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) -Home Building Act 1989 (NSW)

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5th March 2008
Project Architecture Pty Limited v Peter's of Kensington Pty Limited [2008] NSWDC 24

Claim under Building and Construction Industry Security of Payment Act 1999 - Application for Summary Judgment - Relevant principles - Whether triable issue of fact or law had been disclosed - Whether party raising triable issue of fact required to cross-examine opposing party LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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4th March 2008
David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164

CONSTRUCTION – CONTRACT – whether Building and Construction Industry Security of Payment Act 1999 applies – whether construction contract within s 7(2)(b) – statutory construction – whether claimant entitled to payment claim – claimant’s application for summary judgment under Uniform Civil Procedure Rules 2005, Pt 13, r 13.1LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Home Building Act 1989Interpretation Act 1987 - Uniform Civil Procedure Rules 2005

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29th February 2008
Da Silva and Da Silva Constructions P/L v Bresond P/L [2008] NSWSC 158

Consumer Trader & Tenancy Tribunal has no jurisdiction to order corporate plaintiff to provide security for costs - Tribunal not a court under Corporations Act 2001 (Cth) and not otherwise authorised LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001 - Corporations Act 2001 (Cth) - Home Building Act 1989 - Local Courts Act 1982

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28th February 2008
David Hurst Constructions P/L v Helen Durham [2008] NSWSC 318

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether adjudicator considered material in breach of s20(2B) of the Act – whether adjudicator failed to comply with s22(2) of the Act – whether adjudicator misunderstood terms of contract, or their application – whether any such error invalidates determination – denial of procedural fairness – whether s21(4) of the Act imposes mandatory requirement on adjudicators if they are unable to make a determination on evidence before them – no evidentiary onus or presumption imposed by the Act. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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18th February 2008
Katherine Pty Ltd v The CCD Group Pty Ltd [2008] NSWSC 131

BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – judgment founded on adjudication certificate – restraint of enforcement of determination or judgment where unconscionability – Trade Practices Act 1974 (Cth), s51AA and s51AC. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Income Tax Assessment Act 1997 - Trade Practices Act 1974

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13th February 2008
Lifese Pty Limited v Adelaide Brighton Cement Limited [2008] NSWDC 38

Contracts - Building Contract - Builder's claim for unpaid money - Effect of subsequent adjudication - LEGISLATION CITED: Building and Construction Industry Security Payment Act 1999 -Civil Procedure Act 2005

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12th February 2008
Adelaide Bank Limited v BMG Poseidon Corp Pty Limited [2008] NSWSC 68

CATCHWORDS : COMMON LAW - default judgment - application to set aside - whether arguable defence to judgment debt – promissory representation - reliance LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 Real Property Act 1900 Uniform Civil Procedure Rules

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30th January 2008
Majeed v Mahmud [2008] NSWSC 309

PROCEDURE – judgments and orders – setting aside – where judgment given in absence of party. LEGISLATION CITED: (NSW) Building and Construction Industry Security of Payment Act 1999 - (NSW) Uniform Civil Procedure Rules 2005, r 36.15(1)

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17th January 2008
Xycrete P/L v David Taylor Building Services P/L [2008] NSWCTTT 779

Whether the work for which payment is sought was additional work or rectification work? Whether there was a subsequent agreement made for accord and satisfaction of the Applicant’s claim? Whether the Tribunal has jurisdiction to hear the matter as the matter? Home Building Act 1989 - Building and Construction Industry Security of Payment Act 1999

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13th December 2007
Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514

BUILDING AND CONSTRUCTION – Question whether delivery or not of a payment schedule is for court or adjudicator to determine – Delivery challenged on basis that Superintendent under contract who delivered it had no authority to do so – Whether Superintendent can be so authorised – Question whether it was is a matter for adjudicatorLEGISLATION CITED: Building and Construction Industry Security of Payments Act 1999 (NSW)

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13th December 2007
Majeed v Mahmud & 4 Ors [2007] NSWSC 1413

BUILDING & CONSTRUCTION – Security of Payment – where no payment schedule – disallowance of amounts apparently not in respect of construction work or related servicesLEGISLATION CITED: (NSW) Building and Construction Industry Security of Payment Act 1999 ss 13, 14, 15 - (NSW) Uniform Civil Procedure Rules 2005 r 11.4

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7th December 2007
TS Recoveries P/L v Sea-Slip Marinas (Aust) P/L [2007] NSWSC 1410

CORPORATIONS - winding up - company concedes insolvency - whether winding up proceedings should be dismissed as an abuse of process - whether the court should in its discretion dismiss or adjourn the winding up proceedings LEGISLATION CITED: Building and Construction Industry Payments Act 2004 (Qld) - Corporations Act 2001 (Cth), ss 459E, 459R(2), 467(1)(a) - Judicial Review Act 1991 (Qld)

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21st November 2007
Berem Interiors Pty Limited v Shaya Constructions (NSW) Pty Limited [2007] NSWSC 1340

[BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] - Whether determination issued by adjudicator void - Whether jurisdictional error due to absence of construction contract between plaintiff and first defendant. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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13th November 2007
ACN 001 891 103 Pty Ltd v Reiby Street Apartments Pty Ltd [2007] NSWSC 1345

CORPORATIONS – Statutory demand – Portion of debt owed a judgment debt – Appeal from judgment pending – Application to set aside under s 459J(1)(b) for “some other reason” – Where Court of Appeal granted stay of execution of judgment on terms that plaintiff provide security within 21 days and plaintiff did not comply with terms – Held no sufficient “other reason” within meaning of s 459J(1)(b) – Application dismissed. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Corporations Act 2001 (Cth)

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1st November 2007
Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941

Building and construction adjudication pursuant to s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”) – Whether adjudicator breached basic and essential requirements of the Act to consider all submissions duly made – Whether adjudicator failed to make a bona fide attempt to exercise his powers under the Act – Whether plaintiff denied measure of natural justice required under the Act – Nature, gravity and effect of adjudicator’s error relevantLEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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25th October 2007
Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162

BUILDING AND CONSTRUCTION - progress payments - Building & Construction Industry Security of Payment Act - service of payment schedule - service under Corporations Act - relevance of evidence of non-receipt by director of claimant - adjudicator disregards adjudication response on ground that payment schedule was not provided because not received by claimant's director - errors of law - denial of natural justice - whether relief should be by declarations and injunctions or orders in nature of certiorariLEGISLATION CITED: Acts Interpretation Act 1901 (Cth) s 29 - Building & Construction Industry Security of Payment Act 1999 (NSW) ss 3, 4, 13, 14, 15, 17, 20, 22, 27, 31 - Corporations Act 2001 (Cth) s109X

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23rd October 2007
Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190

CORPORATIONS - voluntary administration - deed of company arrangement - where deed refers to obviously incorrect date - whether correct date may be substituted as a matter of constructiion - statutory force and effect of deed indicate rectification by order under s.447A - CORPORATIONS - deed of company arrangement - substantive application for order terminating or avoiding deed - application for interlocutory injunction restraining enforcement of judgment against subject company - where company had judgment created by Building and Construction Industry Security of Payment Act - where judgment debtor asserted greater claim provable under deed of company arrangement - operation of s.553C LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999, s.25 - Corporations Act 2001 (Cth), Parts 5.3A, 5.6 Division 6, ss.444A(4)(i), 444B(2), 444B(6), 444D, 444G, 445D,...

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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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15th June 2007
EFI Construction Pty Ltd v Gee Ha Pty Ltd [2007] NSWLC 17

CATCHWORDS: Building & engineering Contracts -- Progress claims & payments – Whether defendant liable for “unpaid portion” of progress claim – Whether moneys set aside as “deposit” or appropriated by plaintiff – Whether credit note extinguishes original debt ab initio LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 ss. 3, 4, 5, 7, 8, 9, 11, 12, 13, 14 & 15.

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8th June 2007
QBE Insurance (Australia) Ltd v Quasar Constructions (NSW) P/L [2007] NSWDC 162

Building and Construction - report of Refereee - errors alleged in report, some conceded, others disputed - disputed findings open to Referee on the evidence - not demonstrated that Referee misapprehended the evidence, or made perverse findings – reasons of Referee adequate - Practice & Procedure - Court appointed Referee - procedure on delivery of report to Court – whether Referee's report should be adopted, rejected or varied LEGISLATION CITED: UCPR: r 20.14, r 20.23, r 20.24(1)(a)

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30th May 2007
Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554

[BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999] - consequence of failure to provide a notice under s 17(2) of the Act before filing adjudication application - whether filing adjudication application without providing notice under s 17(2) of the Act amounts to an election under s 15(2)(a)(ii) of the Act - whether the plaintiff is precluded from bringing proceedings. LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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23rd May 2007
Clarence Street P/L v ISIS Projects P/L No2 [2007] NSWSC 509

COSTS - of application for further security for costs and other relief - no question of principle

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14th May 2007
Veolia Water Solutions v Kruger Engineering [No 3] [2007] NSWSC 459

CONTRACT - building and construction - where defendant has recovered adjudication determination and judgment against plaintiff - where defendant subject to deed of company arrangement - where plaintiff asserts cross-claim for liquidated damages and defective and incomplete works - plaintiff seeks permanent stay and return of security given by it - whether Building and Construction Industry Security of Payment Act 1999 ceases to apply when contractor or subcontractor becomes insolvent - impact of external administration - where conflict exists between s 25(4) of the Act and ss 553, 553C of the Corporations Act - whether refusal of stay will cause irreparable prejudice LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Corporations Act 2001 - The Australian Constitution

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11th May 2007
General Homes v Jonathon B & Leanne A Caelli trading as JC Electrical [2007] NSWSC 463

[ORDERS] - Whether "strike out" order "determined" the proceedings - whether order made after specified date in Deed of Company Arrangement precludes creditor from obtaining leave to enforce order against company in administration.LEGISLATION CITED: Building and Construction Industry (Security of Payments) Act 1999 (NSW) - Corporations Act 2001 (Cth)

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27th April 2007
Fernandes Constructions v Tahmoor Coal (t/as Centennial Coal) [2007] NSWSC 381

CONSTRUCTION CONTRACT - Building and Construction Industry Security of Payment Act 1999 - payment claim - where tax invoice states that it "is prepared under" the Act - whether tax invoice complies with s 13(2)(c) LEGISLATION CITED: A New Tax System (Good and Services) Act 1999 - Building and Construction Industry Security of Payment Act 1999

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18th April 2007
Scope Data Systems Pty Ltd v David Goman as Rep of the Partnership BDO Nelson Parkhill [2007] NSWSC 278

CORPORATIONS – Statutory demand – Service of documents – Application to set aside or vary statutory demand on grounds of offsetting claim by post – Whether application to set aside made within 21 days of service of statutory demand – Service of statutory demand under s 109X (CTH) Corporations Act – Where mail addressed to registered office diverted to post office box - Where evidence rebuts presumption in s 29 of (CTH) Acts Interpretation Act that statutory demand served in the ordinary course of post – Applicability of s160 of the (NSW) Evidence Act – Section 160 of the (NSW) Evidence Act not displaced by s 109X of (CTH) Corporations Act and s 29 of the Acts Interpretation Act (Cth) – No presumption that statutory demand received in post office box on fourth working day after posting where that was not the specified address – Whether...

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4th April 2007
Siemens v Tolco: Tolco v Siemens [2007] NSWSC 257

Administrative Law. Judicial review. Building & Construction Industry Security of Payment Act 1999 (NSW). Whether determination by an adjudicator was a bona fide exercise of power or a denial of natural justice. Held no consideration of submission and determination set aside.

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4th April 2007
Kidnie v Wolfies Plumbing Services P/L [2007] NSWCTTT 205

Home Building Act 1989 - Consumer, Trader and Tenancy Tribunal Act 2001

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3rd April 2007
Over Fifty Mutual Friendly Society Ltd v Smithies [2007] NSWSC 291

Building and Construction Security of Payment Act 1999 Act inappropriate to construction contracts [as defined] forming part of a loan agreement with a recognised financial institution claim for interlocutory relief whether statutory scheme can be outflanked by application for declaratory relief challenge to adjudication determinations under the Act No serious case shown to justify engaging of balance of convenience parameterLEGISLATION CITED: Building and Construction Security of Payment Act 1999 (NSW)

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2nd April 2007
Biseja P/L v NSI Group P/L No2 [2007] NSWSC 294

BUILDING AND CONSTRUCTION – Dispute Resolution – Adjudications – Enforcement – stay of execution – where judgment creditor moves to discharge stay granted by consent – where proceedings in which issues will be finally determined are part-heard – where those proceedings have been adjourned because of default by judgment creditor – where judgment debtor has bona fide arguable case that no amount properly due – where judgment debt can be fully secured by deposit of title deeds in courtLEGISLATION CITED: (NSW) Building & Construction Industry Security of Payment Act 1999

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2nd April 2007
Biseja P/L v NSI Group P/L No2 [2007] NSWSC 294

BUILDING AND CONSTRUCTION – Dispute Resolution – Adjudications – Enforcement – stay of execution – where judgment creditor moves to discharge stay granted by consent – where proceedings in which issues will be finally determined are part-heard – where those proceedings have been adjourned because of default by judgment creditor – where judgment debtor has bona fide arguable case that no amount properly due – where judgment debt can be fully secured by deposit of title deeds in court LEGISLATION CITED: (NSW) Building & Construction Industry Security of Payment Act 1999

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29th March 2007
Jem v St Hilliers [2007] NSWSC 245

Application to set aside statutory demands under s459G of the Corporations Act. Demands relate to adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW). Consideration of offsetting claims based upon Superintendent's certificate issued under contract. Demand set aside.

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27th March 2007
Silvia & Dasein (in liq) v Brodyn P/L [2007] NSWCA 55

CORPORATIONS - Administration under deed of company arrangement - Proof of debt - Requirement that administrator afford procedural fairness - Extent to which court, on appeal from administrator's decision, limited by particulars of debt given to administrator - COSTS - Proceedings in which administrator or liquidator is a defendant - Ordinary rule or practice - Whether grounds existed for departing therefrom.LEGISLATION CITED: Corporations Act 2001 (Cth) ss.553C, 1321.

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26th March 2007
Clarence Street v ISIS Projects No1 [2007] NSWSC 380

COSTS - security for costs - whether security given earlier without prejudice to defendant's entitlement to seek further security - whether delay a bar to further securityLEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999.

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23rd March 2007
Rojo Building P/L v Jillcris P/L [2007] NSWCA 68

PROCEDURE - Interlocutory decisions - Whether such as to give rise to estoppels - No order for determination of separate question - No order showing that separate question had been finally determined.

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19th March 2007
Downer Construction (Australia) P/L v Energy Australia [2007] NSWCA 49

CONTRACTS — Building, engineering and related contracts — Remuneration —Building and Construction Industry Security of Payment Act 1999 s 17 — Applications for Adjudication of Payment Claims — Whether identifying the payment claim and payment schedule to which an Appliation for Adjudication relates is sufficient where the claim addressed in the accompanying submissions is different in substance to the payment claim so identified.CONTRACTS — Building, engineering and related contracts — The contract — Construction — Latent ConditionsCONTRACTS — Building, engineering and related contracts — Remuneration —Building and Construction Industry Security of Payment Act 1999 s 17 —Adjudication of Payment Claims — Determination of parameters of adjudication — Whether a reasonable but erroneous decision by the adjudicator...

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1st March 2007
JBK Engineering P/L v Brick & Block Co P/L [2007] NSWSC 163

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28th February 2007
Halkat Electrical Contractors Pty Ltd v Holmwood Holdings Pty Ltd [2007] NSWCA 32

CONTRACTS — Building, engineering and related contracts — Other Matters — Building and Construction Industry Security of Payment Act 1999 s 22 —Adjudication — Determination based on matters wholly unrelated to the matters in s 22 — Essential precondition to the existence of a valid determination not metLEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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28th February 2007
Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31

CONTRACT – building contract – implication of term by custom or usage - whether custom or usage so well-known to home owners to imply term into contract – whether implication contrary to express terms of contract - REASONS FOR DECISION – whether trial judge gave adequate reasons for decision – whether trial judge failed to properly engage in fact-finding exercise – determination of expert evidence - DAMAGES – damages for breach of building contract – whether damage proved – rejection of evidence - difficulties in estimating loss – damages should not be nominal - UNREPRESENTED LITIGANT – duty of a trial judge - whether trial judge ensured unrepresented party understood procedural options – failure to provide explanation of processes - APPEAL – order for new trial - whether trial sufficiently unfair to demonstrate...

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27th February 2007
Independent Civil Contractors P/L v JGE Earthmoving P/L [2007] NSWSC 132

CORPORATIONS - winding up - creditors voluntary winding up - application for leave to proceed with cross-claim against company in Local Court proceedings - where company was plaintiff in those proceedings but assigned cause of action after commencement of winding up - assignee substituted as plaintiff in Local Court - whether set-off pursuant to s.553C had occurred - because it had not, no need for applicant's claim to be pursued in existing proceedings LEGISLATION CITED: Bankruptcy Act 1966 (Cth), s.86 Building and Construction Industry Security of Payment Act 1999 Corporations Act 2001 (Cth), Part 5.3A, ss.471B, 500(2), 553(1), 553C

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26th February 2007
John Holland P/L v Roads & Traffic Authority of New South Wales [2007] NSWCA 19

BUILDING AND ENGINEERING CONTRACTS - Progress payments - Claim under Building and Construction Security of Payment Act 1999 - Adjudication - Whether submissions of respondent "duly made" - Whether adjudicator was required to consider them - Whether determination of adjudicator invalid because of failure to comply with s.22 of the Act, lack of good faith or denial of natural justice.LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 ss.8-10, 13, 14, 17, 20-22

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14th February 2007
Baulderstone Hornibrook P/L v Queensland Investment Corp [2007] NSWCA 9

CONTRACTS — Building, engineering and related contracts - Payment schedules under s 14 of the Building and Construction Industry Security of Payment Act 1999 — Whether a payment schedule is properly provided if it is not referred to in a cover letter — Whether a payment schedule prepared and signed by an agent without express authority can be said to have been provided by the principalCONTRACTS — particular parties — principal and agent — authority of agents — construction and extent of authority — authority created by other means — acts incidental to effective execution of express authorityLEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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30th January 2007
Biseja P/L v NSI Group P/L No1 [2007] NSWSC 283

PROCEDURE – stay of execution – where writs recorded on land under Real Property Act – whether recording should be removed – REAL PROPERTY – Torrens Title – effect of recording a writ on title. LEGISLATION CITED : (NSW) Building and Construction Industry Security of Payment Act 1999 - (NSW) Civil Procedure Act 2005 s 135(2)(b) - (NSW) Real Property Act 1900 s 105A(6)

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19th January 2007
Veolia Water Solutions & Technologies v Kruger Engineering Australia P/L [2007] NSWSC 46

CONSTRUCTION CONTRACT - statutory regulation of entitlement to and recovery of progress payments - payment claim - valuation of delay costs - payment schedule - incomplete or defective works - whether adjudication determination void - natural justice - whether dispute decided on basis for which parties did not contend - requirement to have regard to certain matters (s 22(2)) - whether adjudicator entitled or required to consider statutory declaration except as submission in support of payment schedule LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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20th December 2006
Hutchinson J P/L v Auslat Properties P/L [2006] NSWDC 126

Building and Construction - No payment schedule served - Whether payment schedule sufficient and valid - Whether the building works were sufficiently identified LEGISLATION CITED: Building and Construction Industries Security of Payment Act 1999 - Civil Procedure Act 2005

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15th December 2006
Brewarrina Shire Council v Beckhaus Civil P.L [2006] NSWCA 361

CONTRACTS – building, engineering and related contracts – alleged non-compliance with contract specifications – payment claimed under s 8 of the Building and Construction Industry Security of Payment Act 1999 – whether breach of contract – measure of damages – assessment of expert evidence LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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8th December 2006
Michael John Smith t/a Michael Smith Constructions v Avibe P/L : J & S Heddle P/L [2006] NSWSC 1402

CONVEYANCING [191]- Caveat- Extension- Money owed to builder for work done- Building contract for residential building purported to create charge over property at moment of contract- Act generally avoiding creation of charges- Significance of "hereby charges", "subject to the Act"- Charge not valid- Extension of caveat refused. LEGISLATION CITED: Building & Construction Industry Security of Payment Act, 1999 - Home Building Act, 1989, s 7D - Real Property Act 1900, s 74K

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7th December 2006
Royal Tiles Constructions P/L v Park View Constructions P/L [2006] NSWDC 182

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - Service of a Payment Claim by fax - Whether fax number was at the ordinary place of business - Practice and Procedure - Summary judgment – No genuine dispute raised by Defence LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999: s 31

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6th December 2006
Veolia Water Solutions & Technologies v Kruger Engineering Australia P/L [2006] NSWSC 1406

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 - where new payment claim incorporates matters that have been the subject of prior adjudication – where plaintiff seeks to restrain defendant from proceeding with any adjudication application based on that new payment claim – where plaintiff asserts that prior adjudication determination is void – where any hypothetical subsequent adjudicator is bound by s 22(4) - where defendant will be barred by s 13(4)(b) of the Act from filing an additional payment claim if restrained until likely final hearing and decision – whether interlocutory relief appropriate. COSTS – where plaintiff brought application in a peremptory way – where nature of debate substantially altered – whether costs in the proceedings – no question of principle.

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1st December 2006
Inten Constructions v Refine Electrical Services [2006] NSWSC 1282

BUILDING AND CONSTRUCTION - where plaintiff's payment schedule and adjudication response asserted that no contract provision supported the first defendant's claim - whether adjudicator was entitled or required to consider the relevant provisions of the contract under s 22(2)(b), (d) of the Building and Construction Industry Security of Payment Act 1999 (NSW) - where adjudicator found claim to be supported by the contract - whether natural justice required adjudicator to provide the plaintiff with an opportunity to respond - where adjudicator considered plaintiff's adjudication response - where adjudicator did not expressly state reasons for rejecting plaintiff's approach - whether adjudicator acted impartially - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWCA 394 - whether adjudication determination void ACTS CITED: Building and Construction Industry...

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24th November 2006
JBK Engineering Design & Construction P/L v Brick & Block Co P/L [2006] NSWSC 1301

Building & Construction Industry Security of Payment Act 1999 (NSW) - Proper construction of words "final determination of the proceedings" as used in s 25(4)(b) LEGISLATION CITED : Building & Construction Industry Security of Payment Act 1999 (NSW)

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17th November 2006
Ettamogah Pub (Rouse Hill) P/L v Consolidated Constructions P/L (in liq) [2006] NSWSC 1450

CORPORATIONS – Winding-up – Winding-up in insolvency – Statutory demand – Application to set aside statutory demand – Genuine dispute as to indebtedness – Offsetting and other like claims – Plaintiff and defendant, a builder, entered into building contract – Defendant lodged payment claims with plaintiff pursuant to s 13 Building and Construction Industry Security of Payment Act 1999 (NSW) – Plaintiff liable to pay defendant pursuant to s 14(4) Security of Payment Act – Defendant commenced proceedings and obtained judgment in its favour – Defendant served plaintiff with statutory demand in same amount as judgment debt – Whether seriously arguable that plaintiff entitled to relief pursuant to s 32 Security of Payment Act – Whether seriously arguable that plaintiff entitled to damages against defendant for defendant’s...

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17th November 2006
John Holland P/L Ltd v RTA No2 [2006] NSWSC 1202

ADMINISTRATIVE LAW - Particular Tribunals or bodies - Building and Construction Industry Security of Payment Act 1999 - Adjudicator's determination - Whether adjudicator failed to consider a submission in an adjudication application - Whether a denial of natural justice - Whether determination void ACTS CITED:Building and Construction Industry Security of Payment Act 1999

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14th November 2006
JBK Engineering P/L v Brick & Block Co P/L [2006] NSWSC 1192

Building and Construction Industry Security of Payment Act 1999

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18th October 2006
Jem Developments Pty Ltd v Hansen Yuncken Pty Ltd [2006] NSWSC 1087

Building and construction - Building Construction Industry Security of Payment Act 1999 - Proper construction of s 25 (4) of Act - Meaning of words "commences proceedings to have the judgment set aside" - Whether a respondent to an application under the Act against whom a judgment debt following a determination has been entered, may albeit eschewing making an application to have the judgment set aside, seek any and if so what form of declaratory and associated relief challenging the validity of the determination. ACTS CITED: Building Construction Industry Security of Payment Act 1999 (NSW) - Supreme Court Act 1970 (NSW)

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29th September 2006
CCD v Drywall [2006] NSWSC 1012

Corporations Law. Application under 459G of the Corporations Act 2001 to set aside statutory demand. Formal defects in the affidavit in support a reason for setting aside the demand. Genuine dispute and off-setting claim established. Demand set aside.

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29th September 2006
Lucindole P/L v Homer & Jim’s Painting Service [2006] NSWCTTT 544

LEGISLATION: Home Building Act ISSUES: Recovery of moneys by contractor against sub-contractor for incomplete and defective work

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19th September 2006
Falgat Constructions P/L v Equity Australia Corp P/L [2006] NSWCA 259

BUILDING AND ENGINEERING CONTRACTS - Progress payments - Payment claims - Whether successive payment claims, claiming the same amount, can be served - Payment schedules - Time limit for provision of payment schedules - Whether adjudication application can be made if payment schedule provided outside the time limit - Whether s.109X of the Corporations Act 2001 (Cth) applies to provision of payment schedule to a corporation - Effect of s.29 of the Acts Interpretation Act 1901 (Cth) - Whether "provide" means anything different from "serve" in the Building & Construction Industry Security of Payment Act 1999, and is governed by s.31 of that Act. LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s.29 - Building Construction Industry Security of Payment Act 1999 (NSW), SS.13, 14, 15, 17 and 31 - Corporations Act 2001 (Cth), s.109X - Evidence Act 1995 (NSW), s.160

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18th September 2006
Bitannia P/L v Parkline Constructions P/L (No. 2) [2006] NSWCA 255

RESTITUTION – prior to the appeal Appellant agreed to pay the amount of the judgment debt to the Respondent on certain conditions – appeal successful – order made to repay money in terms not inconsistent with the agreement

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14th September 2006
Gateway Fence Installation P/L v Amstruct P/L (Home Building) [2006] NSWCTTT 450

LEGISLATION: Home Building Act 1989 (NSW) - Building and Construction Industry Security of Payment Act 1999 (NSW)

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6th September 2006
Kell & Rigby P/L v Flurrie P/L [2006] NSWSC 906

REAL PROPERTY – Land under Torrens Title – Caveats – BUILDING AND ENGINEERING CONTRACTS – Residential Building Contracts – in what circumstances can residential building contract create caveatable interest - Home Building Act 1989, s 7D – whether s 7D(3)(c) defines terms of permissible charge or event precedent to enforceability – whether judgments obtained by registration of adjudication certificates under Building and Construction Industry Security of Payment Act are judgments that payments of moneys due under the contract be made within s 7D(3)(c) – whether caveatable interest can be created by estoppel when creation by contract prohibited. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 8, 9, 11, 16, 32 - Building Services Corporation Legislation Amendment Act 1996 (NSW) - Commercial Arbitration...

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5th September 2006
John Holland v RTA [2006] NSWSC 874

BUILDING AND CONSTRUCTION - where practical completion achieved - where contract provides for partial release of security at principal's discretion - whether principal entitled to retain all security until amount owing in final payment schedule paid - whether principal has a duty to act in good faith or reasonably - whether principal complied - where contract provides for superintendent's assessment of final claims at expiration of defects liability period - whether void by s 34 of Building and Construction Industry Security of Payment Act 1999 ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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3rd September 2006
Galaxy Construction & Dev. Group P/L v Clarke & Sons Plumbing (Home Building) [2006] NSWCTTT 422

LEGISLATION: Home Building Act 1989 (‘the Act’). - Building and Construction Industry Security of Payment Act 1999 (‘the Security of Payment Act’).

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28th August 2006
Bitannia P/L v Parkline Construction P/L [2006] NSWCA 238

BUILDING AND CONSTRUCTION – progress payments - Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 & 15 – whether bona fide belief in entitlements claimed required for valid payment claim PRACTICE AND PROCEDURE – whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on as a defence – whether Building Payment Act s 15(4)(b)(ii) precluded such defence CONSTITUTIONAL LAW – section 109 inconsistency – whether Building Payment Act s 15(4)(b) invalid to the extent that it prevents the raising of a cross claim in reliance on s 52 of the Trade Practices Act LEGISLATION CITED: Bills of Exchange Act 1909-1912 (Cth), s43 - Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 15, 25, 32, 34 - Constitution, ss 76(ii) and 77(iii), 109 - Corporations Act 2001 (Cth), ss 5E-5G -...

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14th August 2006
John Goss Projects v Leighton Contractors [2006] NSWSC 798

BUILDING AND CONSTRUCTION - whether one adjudicator valued construction work - whether subsequent adjudicator bound by s 22(4) of the Building and Construction Industry Security of Payment Act 1999 to value that work accordingly - where adjudicator decided that obiter dicta in Supreme Court judgment were incorrect - where this issue not advanced by either party - where no notice to parties - whether material to adjudicator's determination - whether parties denied natural justice - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWSC 394 - whether bringing the same claim in consecutive adjudications is abuse of process - where party likely to raise in future adjudication issue of notice precondition on the bringing of claims - whether declaration has utility - whether clause conflicts with s 13(4) of the Act - whether clause void by operation of s 34 of the...

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4th August 2006
Biseja v NSI Group [2006] NSWSC 835

BUILDING AND CONSTRUCTION - where adjudicator found that project management services were "related goods or services" under the Building and Construction Industry Security of Payment Act 1999 - where project management fee might be discharged by transfer in specie of real estate - whether s 7(2)(c) of Act applicable - whether consideration was to be calculated by the value of services - whether open to adjudicator to reach factual conclusion - whether reviewable error - application of Brodyn v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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28th July 2006
Bell v Pearce (Home Building) [2006] NSWCTTT 407

ISSUES Costs – parties each have some success – Calderbank letters – reasonableness of rejection – inability to settle LEGISLATION: Consumer, Trader and Tenancy Tribunal Act 2001

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17th July 2006
Bower v Goth [2006] NSWSC 805

Appeal - Local Court Small Claims Division - outstanding architect's fees ACTS CITED: Local Courts Act 1982 (NSW) - ss 70, 73 - Uniform Civil Procedure Rules 2005 - Part 50.5

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10th July 2006
Multipower v S & H Electrics [2006] NSWSC 757

BUILDING AND CONSTRUCTION - whether adjudicator addressed wrong question, failed to consider relevant material or considered irrelevant material - whether adjudication application made outside time limit prescribed by s 17(3) Building and Construction Industry Security of Payment Act 1999 - whether time limit is "basic and essential" requirement - whether failure to comply with limit vitiates determination - application of Brodyn v Davenport [2004] NSWCA 394 COSTS - whether costs follow event - no question of principle ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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3rd July 2006
RTA v John Holland [2006] NSWSC 567

BUILDING AND CONSTRUCTION INDUSTRY — Building and Construction Industry Security of Payment Act 1999 — Adjudication — Submissions made for first time in Adjudication Response rejected pursuant to s 22(2)(d) — Whether that failure to consider Adjudicator rendered decision void — Whether submissions as to jurisdiction of Adjudicator under the Act must be considered pursuant to s 22(2)(a) and (b) — Whether failure to consider submission vitiating error in sense explained in Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421. BUILDING AND CONSTRUCTION INDUSTRY — Building and Construction Industry Security of Payment Act 1999 — Adjudication — Submission that Adjudicator had no jurisdiction under Act to hear payment claim for extension of time — Submission that Adjudicator not entitled to stand in shoes of superintendent...

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22nd June 2006
Rojo Building v Jillcris [2006] NSWSC 649

ESTOPPEL - where Court on hearing (including of application for summary judgment) found pleaded cause of action unsustainable, gave reasons and made orders - where plaintiff has not sought to amend summons to allege alternative cause of action - whether parties estopped from contending to the contrary of orders made - whether matter should be reopened pursuant to UCPR 36.16(1) or inherent power of Court

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21st June 2006
Acclaim Building Management PL v Loewenthal [2006] NSWDC 29

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 - Civil Procedure Act 2005 - Home Building Act 1989

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16th June 2006
Brodyn P/L v Y A Welding P/L [2006] NSWLC 25

CATCHWORDS: Notice of Motion - Is the plaintiff a person who is entitled to make a claim for payment against the defendant under the Act Construction of the Act - Whether the plaintiff is a person who has "undertaken" to do "construction work" - Progress payments LEGISLATION CITED: Uniform Civil Procedure Rules R.13.1, 14.28 and 16.3 Building and Construction Industry Security of Payment Act 1999 Ss. 3(1), 4, 7, 8(1), 13, 14(4), 15(2)(a) and 34

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13th June 2006
Procorp Civil P/L v Napoli Excavations & Contracting P/L (No.2) [2006] NSWCA 147

PRACTICE - APPEAL - Security for costs - Whether corporation challenging adjudication determination under Building & Construction Industry Security of Payment Act 1999 is in substance a plaintiff - Whether special circumstances need to be shown - Whether special circumstances shown.

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7th June 2006
Baulderstone Hornibrook P/L v Queensland Investment Corp [2006] NSWSC 522

Building and Construction Payment Schedule Whether payment schedule was provided by respondent to claimant Question of fact Contractual requirement that Principals representative be appointed Obligation of Principals representative when exercising functions prescribed by Contract capable of being termed 'fiduciary duties' Challenge to activities [of indirect assistant of Principals representative] in physically assembling folders of documents served as part of payment schedule Activities challenged held to fall outside functions prescribed by the Contract to be carried out by Principals representative

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19th May 2006
Williams v Star Structures P/L (Home Building) [2006] NSWCTTT 347

LEGISLATION: Home Building Act 1989 - Building and Construction Industry Security of Payment Act 1999 CASES Sabemo v De Groot (1992) 8 BCL 132 - L U Simon Builders Pty Limited v H D Fowles [1992] 2 VR 188 - Heaven Building Contractors Pty Limited v Jokarta Pty Limited and Anor (unreported Qld Building Tribunal 21 May 1997) - John Holland Constructions Pty Limited v Majorca Projects Pty Limited (unreported Hansen J Supreme Court of Victoria 27 July 1995) - Makita v Sprowles (2001) 52 NSWLR705

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19th May 2006
Bell v Pearce (Home Building) [2006] NSWCTTT 274

LEGISLATION: Home Building Act 1989 - Building and Construction Industry Security of Payment Act 1999 (BCISP Act) - Consumer, Trader and Tenancy Tribunal Act 2001 CASES: Brodyn Pty Limited v Davenport [2004] NSWCA 394 - Hungerfords v Walker (1989) 171 CLR 125

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17th May 2006
Equipped Constructions v Form Architects [2006] NSWSC 500

CORPORATIONS - winding up - creditor's statutory demand - genuine dispute - dispute arising out of conflicting evidence of oral contract - substantiated amount below statutory minimum - whether indemnity costs appropriate - no issue of general principle ACTS CITED: Corporations Act 2001 (Cth), ss 459G, 459H

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15th May 2006
Halkat Electrical Contractors P/L v Holmwood Holdings P/L [2006] NSWCA 125

BUILDING AND CONSTRUCTION PROCEDURE - APPEAL - Declaration that adjudication determination void - Contractor appeals, and also issues further payment claim including the same work and obtains an adjudication determination on that claim - Whether appeal an abuse of process - Whether it should be struck out or stayed. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999, ss.13, 24

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15th May 2006
Baseline Constructions v Classic Group Painting Services [2006] NSWCA 123

PROCEDURE - APPEAL - Whether relief in nature of a stay would be granted because of strength of appellant's case on appeal.

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9th May 2006
Baseline Constructions v Classic Group Painting Services [2006] NSWSC 397

Building and Construction Entitlement to make second payment claim Determination of reference dates S22(4) of Building and Construction Industry Security of Payment Act (NSW) 1999 requires a subsequent adjudicator to treat an attempt [by an earlier adjudicator to determine the value of construction work] as having been successful and compliant with s.10 value of work changing since previous determination

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9th May 2006
Procorp Civil P/L. v. Napoli Excavations & Contracting P/L [2006] NSWCA 118

PRACTICE - APPEAL - Whether stay should be granted on late application and on incomplete material.

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5th May 2006
Reiby Street Apartments v Winterton Constructions [2006] NSWSC 375

BUILDING AND CONSTRUCTION – ADMINISTRATIVE LAW – Second defendant made adjudication determination pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) – Whether second defendant failed to consider plaintiff’s payment schedule and adjudication response – Whether second defendant erred in failing to consider plaintiff’s payment schedule and adjudication response – Whether second defendant’s adjudication determination is void – Whether second defendant committed jurisdictional error, failed to act bona fide, or failed to afford plaintiff natural justice – Sections 20(2B) and 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW) considered – Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 considered.

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5th May 2006
Springs Golf Club P/L v Profile Golf P/L & William Donald Mawney Taylor [2006] NSWSC 395

Building and Construction Security of Payments Act 1999 (NSW) Requirement that unsuccessful party having paid unpaid portion of adjudicated amount into Court be ready to proceed if opposing payment out Impermissible use of subpoena/notice to produce for purposes of fishing to establish whether a basis exists to oppose payment out

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3rd May 2006
Advanced Mechanical Systems v Duct Co Pty Ltd [2006] NSWSC 439

Supreme Court procedure - Mareva orders - Judgment entered in District Court on adjudication certificate under the Building and Construction Industry Security of Payment Act 1999 - Application in District Court for stay of judgment pending determination of other proceedings in the District Court - Continuation of interim order for stay not sought - Garnishee order granted in District Court successful - Application to this Court for mareva order – Orders sought requiring payment of garnishee receipts to Registrar of the District Court and injunction restraining the taking of any further steps to enforce the District Court judgment

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28th April 2006
Grant Constructions Pty Ltd v Claron Constructions Pty Ltd [2006] NSWSC 369

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28th April 2006
Springs Golf Club P/L v Profile Golf P/L [2006] NSWSC 344

CONSTRUCTION CONTRACTS Progress payments Building and Construction Industry Security of Payment Act Adjudicator's determination re payment schedule Whether judicial review available Whether valid adjudication application had been made Whether valid payment schedule under the Act

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21st April 2006
Procorp Civil P/L v Napoli Excavations and Contracting P/L [2006] NSWSC 358

Practice and Procedure - Building and Construction Industry Security of Payment Act 1999 (NSW) - Moneys paid into Court as security - Interlocutory position pending appeal

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20th April 2006
Probuild Pty Ltd v Blazevic Holdings Pty Ltd [2006] NSWSC 273

Progress payment claim for variations - no express provision with respect to reference date - no payment schedule - dispute as to month in which the construction work was first carried out - no error in point of law.

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19th April 2006
Rojo Building Pty Ltd v Jillcris Pty Ltd [2006] NSWSC 309

Building and Construction Industry Security of Payment Act 1999 Application for summary judgment Failure of respondent to serve payment schedule within time delimited by s14 Applicant given election to proceed to obtain judgment or to proceed to adjudication Having elected to proceed to adjudication, claimant has waived anterior right to obtain judgment Practice and Procedure Application to reopen Principles

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18th April 2006
Fifty Property Investments P/L v Barry J O'Mara & Impero Stone [2006] NSWSC 428

BUILDING AND CONSTRUCTION – Resolution of dispute – Adjudication – Determinations – Judicial Review – basic and essential requirements – construction contract – whether jurisdictional fact – held, it is and can be reviewed by court – natural justice – failure to give party opportunity to comment on additional submissions obtained from other party – held, denial of that measure and procedural fairness prescribed by Act. LEGISLATION CITED: Building and Construction Industry Security of Payment Act , 1999

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12th April 2006
Wooding v Eastoe & Maitland Fabrications P/L [2006] NSWSC 277

ADMINISTRATIVE LAW [22]- Jurisdictional error- Statutory adjudicator- Error in wrongly determining contracting parties does not vitiate decision. EQUITY [20]- Equitable assignment- Necessity for plain words eliciting clear intention- Equitable assignment of development property does not alter the parties to the contract concerning that property- Statutory adjudicator cannot consider questions of equity.

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29th March 2006
Isis Projects v Clarence Street [2006] NSWSC 190

Costs – Dispute resolved without hearing on merits – No capitulation – Whether any party had substantial success - Whether plaintiff acted reasonably in bringing proceedings – Whether any party was almost certain to have succeeded – Whether orders as to costs are appropriate.

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29th March 2006
Procorp Civil Pty Ltd v Napoli Excavations & Contracting Pty Ltd [2006] NSWSC 205

Building and Construction Industry - Challenge to Adjudication Determination - General principles examined-Significance of considering position of Adjudicator - Task of Adjudicator to determine the claimant’s entitlement within the framework of the dispute propounded by the parties - Significance of provision preventing a respondent from including in the adjudication response, any reasons for withholding payment unless those reasons have already been included in payment schedule - Whether evidence should be permitted on an application to set aside a determination - Limited evidence permitted on the voire dire on the basis of a reserved ruling as to admissibility - Evidence disallowed - Adjudicator determining that amount of the progress payment to be paid by the respondent was in excess of the amount finally claimed by the claimant as remaining outstanding - Extant power of adjudicator...

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14th March 2006
Shell Refining (Australia) Pty Ltd v A J Mayr Pty Ltd; Mayr v Shell [2006] NSWSC 154

[JURISDICTION] Application for revocation of orders made for the payment out of $4,942,716.00 of $11,228,898.63 paid into court pursuant to s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 as a condition of the grant of a stay - whether the Court has jurisdiction to order stay on condition of payment out of part of the security paid into court - whether legislation intended to fetter the discretion of a judge where dictates of justice require payment out. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Civil Procedure Act 2005 - Uniform Civil Procedure Rules 2005

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6th March 2006
Shell Refining (Australia) Pty Ltd v A J Mayr Engineering Pty Ltd [2006] NSWSC 94

Administrative Law - Whether a determination should be declared void because the adjudicator failed to comply with basic and essential requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW) in determining that the plaintiff pay $11,137,998.30 to the defendant. Adjudicator Practice - Whether, as a matter of practice, adjudicators should include statements in determinations to the effect that it is not to be assumed that matters not mentioned in the determination have not been taken into account.

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27th February 2006
QBE Workers Compensation (NSW) Ltd v G J Formwork Pty Ltd [2006] NSWSC 98

CORPORATIONS - winding up - proposed compromise by liquidator - whether relevant claim "debt" - no need to determine precise nature of claim - compromise proposed on advice of lawyers - liquidator in any event without funds - approval granted and direction made LEGISLATION CITED : Corporations Act 2001 (Cth), ss.477(1)(d), 477(2A), 479(3)

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15th February 2006
Energy Australia v Downer Construction (Australia) P/L [2006] NSWSC 52

BUILDING AND CONSTRUCTION – Contracts – Payment claims – Adjudication – Challenge to validity of adjudication application and adjudication determination – Basic and essential requirements for application and determination – Whether differences between payment claim and adjudication application rendered application invalid – Whether adjudicator determined claim substantially different to payment claim – Whether failure to determine payment claim rendered determination void – Building and Construction Industry Security of Payment Act 1999 ss 13, 14, 17, 20, 22, 25. ADMINISTRATIVE LAW – Judicial Review – Judisdictional error – Whether determination a bona fide exercise of power – Whether denial of natural justice ACTS CITED: Building & Construction Security of Payment Act 1999 s 13(2); s 14; s 17(1), (3);...

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10th February 2006
Accrete Constructions P/L v Kinsley Constructions P/L [2005] NSWLC 14

Procedure - Motion to set aside judgment - Whether judgment entered under Building and Construction Industry Security of Payment Act (BCISP Act) irregularly - Whether BCISP Act requires qualifications of adjudicators to be prescribed by regulation - Whether adjudicators to be prescribed by regulation - Whether adjudicator acted within the scope of authority in dealing with contract and progress payment claim - Whether assessed claim on its merits LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 ss 7, 9- 12, 13, 17, 18, 22, 23, 24, 25.

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31st January 2006
Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 13

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – Resolution of disputes – Adjudication – Determinations – Judicial review – minimum requirements for validity – whether 12-month limit for serving a claim is a basic and essential requirement non-compliance with which results in invalidity – held it is not – whether payment claim made within 12 months of performance of the latest of the construction work to which it related – whether specificity in payment claim is basic and essential requirement non-compliance with which results in invalidity – held it is not – whether payment claim sufficiently specified the construction work in respect of which it was made - whether service on receiver of respondent required – held it is not – whether adjudicator failed to have regard to relevant submissions –...

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30th January 2006
Brookhollow P/L v R&R Consultants P/L & Philip Davenport [2006] NSWSC 1

BUILDING AND CONSTRUCTION INDUSTRY – When is a payment claim invalid for purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) – authorities and principles discussed – what are the requirements of s.22(2) – what must an adjudicator show in reasons for determination when adjudication process is undefended. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) – s.11, s.13, s.14, s.15, s.17, s.20, s.22, s.23, s.24, s.25, s.32.

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11th January 2006
De Martin & Gasparini v State Concrete [2006] NSWSC 31

BUILDING AND CONSTRUCTION – where adjudicator without notice to the parties reinvestigates matters agreed upon by the parties and determines value inconsistently with that agreement - where adjudicator without notice to the parties determines value of prior work inconsistently with determination of prior adjudicator - whether denial of natural justice. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

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25th November 2005
Energetech Australia v Sides Engineering [2005] NSWSC 1143

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – remuneration – payment claim under Building and Construction Industry Security of Payment Act 1999 – application for declarations and injunction to prevent payment claim from being submitted to adjudication on basis that payment claim was not made with respect to a reference date under the contract, or was made with respect to a reference date concerning which another payment claim had already been adjudicated – whether appropriate in principle for court to involve itself in such a question – STATUTES – ACTS OF PARLIAMENT – operation and effect of statutes – Act creating an obligation and providing means for securing compliance with that obligation – whether court intervention in the operation of that means of compliance permissible – TRADE PRACTICES AND RELATED MATTERS...

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25th November 2005
Prynew P/L v Piling Contractors (Qld) P/L [2005] NSWSC 1211

BUILDING AND ENGINEERING CONTRACTS: - adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) - security for payment - continuation of legal proceedings INTERPRETATION: - general rules of construction of instruments ACTS CITED:Building and Construction Industry Security of Payment Act 1999 (NSW) s 3, s 23 and s 32 - Interpretation Act 1987 (NSW) s 30

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23rd November 2005
Nepean Engineering P/L v Total Process Services P/L (In Liquidation) [2005] NSWCA 409

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Payment claims - Requirement of identification of work - Consequences of defecient identification - Whether payment claim a nullity - Whether, in absence of a payment schedule, a payment claim pruporting to identify the work can support a cause of action under s.15 of the Act - Whether summary judgment available. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999, ss.13-15, 20-22

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16th November 2005
Clarence Street P/L v Isis Project P/L [2005] NSWCA 391

CONSTRUCTION CONTRACTS – payment claims to progress payments – payment schedules – ss 13, 14, 15 Building and Construction Industry Security of Payment Act 1999 – statutory debt – failure to identify the construction work to which the claimed progress payment relates – function of a payment claim – interpretation of s13(2)(a) – due date for progress payments – reference date – express provision – whether payment claim must meet contractual requirements for payment to be due – prohibition in s15(4)(b)(ii). (D) LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

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14th November 2005
Shellbridge P/L v Rider Hunt Sydney P/L [2005] NSWSC 1152

BUILDING AND CONSTRUCTION - progress payments - Building and Construction Industry Security of Payment Act - duty of adjudicator to consider submissions as incident of measure of natural justice required by the Act - whether duty discharged ACTS CITED: Building and Construction Industry Security of Payment Act 1999, ss.8(2)(b), 13, 17, 21(4)(a), 25

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8th November 2005
Holmwood Holdings P/L v Halkat Electrical Contractors P/L [2005] NSWSC 1129

BUILDING AND CONSTRUCTION – ADMINISTRATIVE LAW – Building and Construction Industry Security of Payment Act 1999 –grounds for judicial review – grounds on which purported determination may be void – effect of failing to advert, at all, to relevant term of contract - failure to have regard to relevant considerations – distinction between error in considering relevant term and failing to consider it at all - good faith – content of good faith – not limited to dishonesty malice or personal interest – extends to capriciousness – requires genuine and conscientious attempt to exercise power – effect of deciding adjudication on questions of credit where credit irrelevant and failing to attempt to resolve issues by means provided by statute – effect of failing to advert, at all, to a submission made by a party on central issue...

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4th November 2005
Errol Investments Pty Ltd v Taylor Projects Group Pty Ltd [2005] NSWSC 1125

BUILDING, ENGINEERING AND RELATED CONTRACTS - adjudication under s22 of the Building and Constructions Industry Security of Payment Act 1999 - challenge to adjudicator's decision on grounds of denial of natural justice - whether inference should be drawn of failure to consider relevant material ACTS CITED: Building and Construction Industry Security of Payment Act 1999 s22(2)

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3rd November 2005
Lanskey v Noxequin [2005] NSWSC 963

Building and Construction. Determination under the Building & Construction Industry Security of Payment Act 1999. Failure of Adjudicator to consider submissions of plaintiff. Adjudication determining part of the matter on a basis not presented by the parties for determination. Adjudicator's failure to engage in a bona fide exercise of power and to accord the parties natural justice. Determination declared void.

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14th October 2005
Energy Australia v Downer Construction (Australia) P/L [2005] NSWSC 1042

BUILDING AND CONSTRUCTION - progress payments - Building and Construction Industry Security of Payment Act - claim for interlocutory injunction pending hearing of claim for declarations that purported adjudication void and of no effect - serious question to be tried - plaintiff's ability to seek setting aside of any judgment obtained under the Act not prejudiced - balance of convenience favours defendant - interlocutory injunction refused ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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10th October 2005
FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340

CONTRACT - interpretation of building and construction contract AS4300-1995 - whether statutory declaration produced by builder in support of progress claim was false - effect of falsity of statutory declaration - whether power of superintendent to certify progress claim extends beyond termination of contract – whether builder had accrued right to progress payment – whether termination was lawful - whether show cause notice adequate - whether there was a substantial breach - COSTS - personal costs order against company director and shareholder under s148B of the District Court Act 1973 (NSW) - factors relevant to discretion to make costs order against a non-party

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16th September 2005
Barclay Mowlem Construction Ltd v Tesrol Walsh Bay P/L [2005] NSWSC 944

PROCEDURE - subpoenas - power of court to issue a subpoena in aid of enforcement of a judgment - PROCEDURE - costs - costs of motion which settles ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Supreme Court Rules 1970 - Uniform Civil Procedure Rules 2005

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13th September 2005
Air Dynamics Control & Services Contracting P/L v Durham [2005] NSWSC 861

Validity of adjudication - denial of natural justice - statutory non-compliance - setting aside of satisfied judgment - exhaustion of statutory process - utility of granting relief. ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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13th September 2005
Lucas Stuart P/l v Council of the City of Sydney [2005] NSWSC 925

PRACTICE AND PROCEDURE - STAY OF EXECUTION - Whether judge at first instance should exercise power to grant stay when Court of Appeal has refused stay upon terms. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - s.15

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6th September 2005
Glen Eight v Home Building [2005] NSWSC 907

BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain builder from applying for certificate relating to the determination - balance of convenience - terms upon which injunction to be issued - whether security to be provided for payment of amount of adjudication determination plus interest - whether security to be provided for amount of adjudicator's fees not paid by proprietor ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Home Building Act 1989

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24th August 2005
Australian Securities Investment Commission v Edwards [2005] NSWSC 831

CORPORATIONS - insolvent trading - directors' liability - whether debts incurred - whether company insolvent - whether reasonable grounds for suspecting insolvency existed - whether defendant director aware of such grounds - whether defendant director failed to prevent incurring of debts - whether any defence available - CONTRACTS - general contractual principles - whether contract formed - whether case within any of first, second and fourth Masters v Cameron categories - RESTITUTION - restitution arising from incomplete contract - performance of work in expectation of reward - entitlement to quantum meruit - when quantum meruit debts incurred ACTS CITED: Corporations Act 2001 (Cth), ss.95A, 588G, 588H, 1317E

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23rd August 2005
Lucas Stuart P/L v Council of the City of Sydney [2005] NSWSC 840

Construction contract - Building and Construction Industry Security of Payment Act 1999 - Purpose of the Act - Plaintiff builder and defendant local government council - Builder serves payment claim on council - Council fails to serve a payment schedule on builder within specified time - Builder seeks summary judgment - Council claims payment claim served in context of misleading and deceptive conduct - Council claims builder estopped from relying on payment claim - No arguable case - Summary judgment awarded ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Trade Practices Act 1974 (Cth)- Fair Trading Act 1987 (NSW)

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5th August 2005
Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 805

PRACTICE AND PROCEDURE - Costs - Dispute arising from appointment of arbitrator - Where action settled - No trial on the merits - Where communication between solicitors should have resolved the issue - Failure to agree due largely to plaintiff imposing unreasonable conditions - Held that proceedings were unreasonably brought by the plaintiff - Plaintiff to pay defendant's costs. ACTS CITED:Commercial Arbitration Act 1984 (NSW) - Building & Construction Industry Security of Payment Act 1999 (NSW)

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5th August 2005
Energetech v Sides Engineering [2005] NSWSC 801

BUILDING AND CONSTRUCTION - where alleged that referee incorrectly calculated reference date under s 13(4) - whether basic and essential requirement of service of payment claim includes compliance with s 13(4) - whether failure to comply with s 13(4) renders adjudication determination void ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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4th August 2005
Brewarrina Shire Council v Beckhaus Civil P/L [2005] NSWCA 248

BUILDING AND CONSTRUCTION - defective or incomplete work - no damage for defective or incomplete work sustained while contract is on foot and contractor is required to complete the work - termination by agreement - can be ab initio or release from future performance only - implied term that the parties' rights are governed by provisions in the contract relating to completion despite the termination of it - failure to meet contractual standard - evidentiary onus on contractor to prove the contractual standard has substantially been complied with - breach by contractor - evidentiary onus on contractor to prove no damage suffered - assessment of damages for rectification costs - costs of new work required to achieve conformity with contractual requirements - undertaking of the new work must be reasonable - intention to rebuild or to rectify the work is generally not relevant - suspension of...

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18th July 2005
Falgate v Masterform [2005] NSWSC 728

BUILDING AND CONSTRUCTION - Whether the claim was a payment claim, whether failure to allow the time required before applying for adjudication was a substantial breach of natural justice, whether failure to serve application for adjudication was a breach of natural justice, and whether ceasing action in one jurisdiction indicates abandonment of rights at general law. The claim set out all the requirements under the Building and Construction Industry Security of Payment Act 1999, thus it was a payment claim. Failure to allow time required was a substantial breach of natural justice. - Held: Adjudication Determination set aside.

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14th July 2005
Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 715

BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain appointing authority from issuing certificate relating to the determination, and to restrain recipient of the determination from filing any such certificate - balance of convenience - provision of bank guarantee - form of orders ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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13th July 2005
Coordinated Construction Co. P/L. v Climatech (Canberra) P/L [2005] NSWCA 229

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act. LEGISLATION CITED: Building & Construction Security of Payment Act 1999, ss.3, 4, 6, 8, 9, 10, 11, 13, 17 and 22.

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13th July 2005
Coordinated Construction Co. P/L. v J.M. Hargreaves (NSW) P/L [2005] NSWCA 228

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Whether "delay damages" under contract are "for" construction work or related goods and services - Whether delay damages can be included in payment claims under the Act. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999, ss.3, 4, 6, 8, 9, 10, 11, 13, 17 and 22.

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11th July 2005
Lifestyle Retirement Projects No 2 v Parisi Homes [2005] NSWSC 705

CORPORATIONS - winding up - whether bona fide dispute exists as to existence of debt - appropriateness of deciding legal question on which the alleged dispute depends - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - payment claim under Building and Construction Industry Security of Payments Act 1999 - whether service of Payment Claim within 12 months after construction work was last carried out is a "basic and essential requirement" to validity of an adjudication determination ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Corporations Act 2001 (Cth)

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5th July 2005
Tolfab v Tie [2005] NSWSC 326

BUILDING & CONSTRUCTION Whether the decision of an Adjudicator should be set aside for failure to take into consideration material in the Adjudication Response; failure to give proper and adequate reasons; failure to value the work; resulting in a breach of natural justice, or failure by the Adjudicator to bona fide exercise power.HELD: Proceedings dismissed Adjudicator did value the works, give appropriate reasons, did not fail to take into account part of submissions. There was no breach of natural justice. There is no question of there being no bona fide exercise of power.

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30th June 2005
Kane Constructions P/L v Sopov [2005] VSC 237

CONTRACT — Building contract — Construction — Progress certificates — Claims for payment — Evidence and information in support of progress claims — Whether material supporting claims condition precedent to issue of a payment certificate — Validity of late progress claims — Validity of late progress certificates — Assessment procedures — Estoppel — Delay and extension of time claims — Liquidated damages — Right of principal to deduct liquidated damages from progress payments — Role of the superintendent — Undue influence — Suspension of works under the contract — Right of principal to access retention moneys under the contract — Substantial breach — Repudiation — Termination — Alternative rights and remedies available to aggrieved party as a result of repudiation —...

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28th June 2005
Cooper v Veghelyi [2005] NSWSC 602

Building and Construction Industry (Security of Payment) Act 1999 (NSW) (BCISP Act)Consumer Trader and Tenancy Tribunal Act 2001

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23rd June 2005
Falgat Constructions v Masterform [2005] NSWSC 525

Corporations - application to set aside judgment debt under s 459G of the Corporations Act. Judgment debt following on adjudication under the Building & Construction Industry Security of Payment Act. Whether such judgment was on the merits and created a res judicata sufficient to prevent the raising of a genuine dispute. Held genuine dispute could be raised.

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23rd June 2005
Bell v Pearce (Home Building) [2005] NSWCTTT 433

LEGISLATION: Home Building Act 1989 - Consumer Trader and Tenancy Tribunal Act 2001 - Building and Construction Industry Security of Payment Act 1999

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17th June 2005
Taylor Projects Group P/L v Brick Dept. P/L [2005] NSWSC 571

Building and construction - Practice and procedure - Proceedings by head contractor against subcontractor seeking to impugn an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) - Agreement to the effect that plaintiff would refrain from seeking injunctive relief to prevent determination registration and would pay funds into Court on the basis that in the event defendant succeeded in upholding adjudication determination, subject funds would be released to defendant forthwith upon it filing the adjudication certificate as a judgment in a court pursuant to the Act - District Court proceedings to determine the parties respective legal rights on final basis - Decision of Supreme Court that adjudication determination valid - Plaintiff opposes release to defendant of funds held by Supreme Court contending that defendant's financial position...

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16th June 2005
Reiby Street v Winterton [2005] NSWSC 545

BUILDING AND CONSTRUCTION – Adjudication determination was made on progress payment pursuant to the Building and Construction Industry Security of Payments Act 1999 – party requested a review of the Master Building Association’s nomination of adjudicator on the basis of apprehended bias because of a previous “dispute” – whether there was apprehended bias in the circumstances – whether party is estopped from now seeking an order in the nature of certiorari – whether party made an election by continuing with the adjudication process – whether there was a waiver to the right of objection on the basis of apprehended bias. - Held that there was apprehended bias and that determination was void.ACTS CITED: - Building and Construction Industry Security of Payment Act 1999

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8th June 2005
Facade Innovations Pty Ltd v Timwin Constructions Pty Ltd [2005] NSWCA 197

PRACTICE - Stay of order - Judgment pursuant to s.25 of Building & Construction Industry Security of Payment Act - Separate proceedings for declaration that adjudication determination was void - Enforcement of judgment stayed on amount being paid into Court - Declaration made and order made for payment out of money - Appeal - Whether order for payment out should be stayed pending setting aside of judgment and/or determination of appeal. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 s.25

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2nd June 2005
Plus 55 Village Management P/L v Parisi Homes P/L [2005] NSWSC 559

BUILDING AND CONSTRUCTION - Application under s 459G of Corporations Act to set aside a statutory demand - Oral agreement for building of aged-care hostel - Adjudication in favour of the defendant filed as a District Court judgment - Consumer Claims Tribunal declined to hear application due to lack of jurisdiction - Dispute as to basis for payment - Dispute as to whether work is a "dwelling" under Home Building Regulations - Home Building Act ss 10, 91(1)(a), 92, 94 - Building and Construction Industry Security of Payment Act ss 32(2), (3) - Corporations Act s 459G, s 459H(1)(b) - Held that there is a genuine dispute about whether the plaintiff is liable for the amount adjudicated - Statutory demand set aside.

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1st June 2005
Timwin Construction P/L v Facade Innovations P/ L [2005] NSWSC 548

BUILDING AND CONSTRUCTION - good faith - meaning of good faith - whether attempt made in good faith by adjudicator to exercise powers under the ActACTS CITED: Brodyn v Davenport and Anor [2004] NSWCA 394 - Minister for Commerce v Contrax Plumbing [2005] NSWSC 142 - Multiplex Constructions Proprietary Limited v Luikens [2003] NSWSC 1140 - Roberts v Hopwood [1925] AC 578 - The Queen v Hunt; ex parte Sean Investments Proprietary Limited [1979] HCA 32; (1979) 180 CLR 322 - Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

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6th May 2005
FPM Constructions P/L v The Council of the City of Blue Mountains [2005] NSWCA 147

SECURITY FOR COSTS - no question of principle LEGISLATION CITED: Corporations Act 2001 s 1335(1) - Supreme Court Rules 1970 Pt 51 r 16

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6th May 2005
Minister for Commerce v Contrax Plumbing [2005] NSWCA 142

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Matters for consideration of adjudicator - Alleged error in construction of contract - Alleged error in application of s.34 of the Act - Whether such errors could invalidate determination. LEGISLATION CITED: Building & Construction Industry Security of Payment ACt 1999

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5th May 2005
Taylor Projects Group P/L v Brick Dept P/L [2005] NSWSC 439

Claims under Building and Construction Industry Security of Payment Act 1999 (NSW) - Date of service of Payment Claim - Suggested constructive resubmission of Payment Claim - Adjudication held not to have erred - Obiter consideration of whether Determination failed to satisfy one of the essential conditions laid down by the ActACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Corporations Act (1901) (Cth)Supreme Court Act 1970 (NSW)

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29th April 2005
Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339

Contract - Statutory Construction. -Whether three invoices served in the same facsimile can constitute one payment claim under the Building and Construction Industry Security for Payment Act 1999. -Held that this did constitute one payment.ACTS CITED: Building and Construction Industry Security of Payment Act

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22nd April 2005
Air Dynamics Control & Services Contracting v Durham [2005] NSWSC 366

Building and Construction Industry Security of Payment Act

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22nd April 2005
Lifestyle Retirement Projects No 2 P/L v Parisi Homes P/L [2005] NSWSC 411

BUILDING AND CONSTRUCTION - ADJUDICATION - INJUNCTION - Plaintiff alleges facts which, if proved, would result in invalidity of adjudication under Building and Construction Industry Security of Payment Act 1999 - Plaintiff seeks interlocutory injunction restraining any further step in adjudication process until final hearing of question of validity.ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - s.13(4), s.14(4), s.17(1), s.25(1)

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20th April 2005
Meyer v Brian Burston Building Design Consultant (General) [2005] NSWCTTT 235

LEGISLATION: Consumer, Trader and Tenancy Tribunal Act 2001, Consumer Claims Act 1998, - Building and Construction Industry Security of Payment Act 1999.

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14th April 2005
Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362

Building & construction industry - Building and Constructions Industry Security of Payment Act - adjudication application - where plaintiff sought to restrain appointment of adjudicator - where plaintiff sought to restrain defendant from proceeding with adjudication application - whether adjudicator able to determine whether payment claims in adjudication application can be awarded - discretionary considerations.ACTS CITED: - Building and Construction Industry Security of Payment Act 1999

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14th April 2005
Pacific General Securities Ltd v Soliman & Sons P/L [2005] NSWSC 378

Building and construction - Building and Construction Industry Security of Payment Act 1999 - Where injunction sought to restrain enforcement of adjudication determination - Adjudication application - Whether failure to comply with basic and essential requirement of the Act - Whether denial of natural justice - Whether notice of acceptance of application served on plaintiffs - Where service is taken to be effective upon receipt - Whether notice of application received by plaintiffs - Where unchallenged evidence of system and non receipt - No question of principle.

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13th April 2005
Co-ordinated Construction Co P/L v Climatech (Canberra) P/L [2005] NSWSC 312

[STATUTORY CONSTRUCTION] - [CONSTRUCTION CONTRACT] - Application for permanent injunction to restrain the obtaining of a certificate under the Building and Construction Industry Security for Payment Act 1999 (NSW) - Whether the claims under the contract as a result of the awarding of extensions of time were "variation" claims under the contract - Whether claims for delay damages consequent upon extensions of time are able to be claimed in a payment claim under the Act and awarded in a determination under the Act.ACTS CITED: - Building and Construction Industry Security of Payment Act 1999 (NSW) - Supreme Court Act 1970 (NSW)

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6th April 2005
Hogan v Allan (Home Building) [2005] NSWCTTT 255

ISSUES: Whether the contractor represented himself to the homeowner as a building contractor? Whether this contract was on a “fixed price” or an ongoing “costs plus” basis? Whether works in rebuilding a bathroom were completed to contract specifications and an acceptable standard of workmanship? Whether the homeowner and/or the contractor terminated or repudiated the contract? Whether the homeowner has unlawfully withheld payment for work completed by the contractor? Whether the contractor is entitled to make a claim based upon contract or is reduced to seeking the remedy of restitution in quantum meruit? LEGISLATION: Home Building Act 1989

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4th April 2005
Vince Schokman v Xception Construction P/L [2005] NSWSC 297

Section 17(2) notice of intent to apply for adjudication served out of time - Adjudication application made out of timeSection 15(2)(a) makes provision for alternatives of either proceeding to recover claimed amount as a debt in curial proceedings or of making adjudication application - Where claimant elects to seek adjudication determination and adjudication procedures miscarry, claimant cannot revert to seeking judgment in curial proceedingsACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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2nd April 2005
Precision Flooring P/L v Tricon Projects P/L (Home Building) [2005] NSWCTTT 250

LEGISLATION: Consumer, Trader and Tenancy Tribunal Act 2001; - Building and Construction Industry Security of Payment Act 1999; Home Building Act 1989. ISSUES: Building claim; whether jurisdiction excluded.

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1st April 2005
Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd [2005] NSWSC 284

CORPORATIONS - STATUTORY DEMAND - Application to set aside - whether genuine dispute as to existence of contract - whether Plaintiff precluded from raising existence of contract by operation of s.15(4) Building and Construction Industry Security of Payment Act 1999 (NSW) - whether facts demonstrated genuine dispute.ACTS CITED: - - Building and Construction Industry Security of Payment Act 1999 (NSW) - s.14, s.15, s.25 - Corporations Act 2001 (Cth) - Pt 5.4, s.459A, s.459C, s.459G

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31st March 2005
Glen Eight v Home Building [2005] NSWSC 309

PRACTICE AND PROCEDURE - injunction - application to restrain breach of alleged trust fund - trusts - express trusts - where moneys deposited by principal into contractor's bank account - where principal is a signatory to the bank account - where contractor in administration - where funds held by administrator - whether prima facie case that funds held on trust - whether principal entitled, on resulting trust, to funds in bank account if primary trust failed - whether intention to create express trust - whether principal entitled to relief on the entire amount held by administrator - whether allowance ought to be made for the legal costs of the administrator - no question of principle ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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23rd March 2005
Cooper v Veghelvi [2005] NSWSC 227

Payment of judgment sum - s 25(4) BCISP Act - whether on appeal money is to be paid into court ACTS CITED: Building and Construction Industry Security of Payment Act 1999 -s 4, s 25 - Consumer Claims Act 1998 - s 8 - Consumer Trader and Tenancy Tribunal Act 2001 - s 53

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3rd March 2005
Falgat Constructions P/L v Equity Australia Corporation P/L [2005] NSWCA 49

BUILDING AND ENGINEERING CONTRACTS - effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999 - BUILDING AND CONSTRUCTION INDUSTRY - Statutory remedies of builder - whether concurrent pursuit of statutory and common law remedies permissible - INJUNCTIONS - anti-suit - whether concurrent pursuit of statutory and common law remedies permissible under statute - whether vexatious or oppressive D - LEGISLATION CITED: - Building and Construction Industry Security of Payment Act 1999

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22nd February 2005
Coordinated Construction Co v J M Hargreaves [2005] NSWSC 77

BUILDING AND CONSTRUCTION - progress payment - adjudicator's determination - basic and essential requirements of a valid determination - whether determination void because adjudicated amount included amounts assumed (but not decided) not to be "for" construction work - whether determination in breach of the Building and Construction Industry Security of Payment Act 1999 is unlawful - whether payment claim served on or from reference dateACTS CITED: -Building and Construction Industry Security of Payment Act 1999

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11th February 2005
Okaroo P/L v Vos Construction and Joinery P/L [2005] NSWSC 45

Building and construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination void ; whether adjudicator made jurisdictional error in determining existence of a construction contract as defined in s 4 of the Act - whether there was an arrangement which was a construction contract - distinction between "contract" and "arrangement" for purposes of the Act - statutory scheme for entitlement to, liability for, and recovery of, a progress payment regardless of provision of relevant construction contract ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 3; 4; 7; 8(1), 8(2)(b); 9(b); 10(1)(b), 10(2)(b); 11(1)(b); 13(1)

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20th December 2004
McLaughlins Family Restaurant v Cordukes Ltd [2004] NSWCA 447

Stay of execution of judgment pending an appeal - payment claim under Building and Construction Industry Security of Payment Act 1999 - no payment schedule - judgment obtained in District Court - appeal on ground payment claim served out of time because remedial work was not construction work to which the payment claim related - difficult argument on appeal - no evidence payment of judgment sum would cause, hardship or be irrecoverable – other proceedings to be brought by judgment debtor for breach of contract - policy of Act favoured reluctance to grant stay in these circumstances - stay refused. CASES CITED : Herscho v Expile Pty Ltd [2004] NSWCA 468

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13th December 2004
Herscho v Expile P/L [2004] NSWCA 468

PROCEDURE - Appeal - Stay of judgment - Judgment under Building & Construction Industry Security of Payment Act - Need for more than real risk of prejudice

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10th December 2004
Greenaways Australia P/L v CBC Management P/L [2004] NSWSC 1186

CORPORATIONS - winding up - application for order setting aside statutory demand - whether genuine offsetting claim - interaction between statutory demand procedure and legislative progress payments procedures - whether order setting aside statutory demand should be subject to condition ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Corporations Act 2001 (Cth), ss.440D, 459G, 459H(5), 500(2)

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9th December 2004
Barclay Mowlem v Tesrol Walsh Bay [2004] NSWSC 1232

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether letter in law sufficient to be payment schedule - s 14(2)(b), (3) - whether "nothing" an amount for purposes of s 14(2)(b) - whether letter "provided" within meaning of s 14(1) ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Trade Practices Act 1974 (Cth)

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3rd December 2004
TQM v Dasein [2004] NSWSC 1216

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination void - where dispute as to date adjudication application served and received - natural justice - whether plaintiff denied natural justice in adjudicator taking into account material withheld from plaintiff - whether relief should be denied as matter of discretion when adjudicator considers payment schedule - whether adjudicator thereby taken to have considered whole of party's caseACTS CITED: Building and Construction Industry Security of Payment Act 1999

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30th November 2004
Coordinated Construction Co Pty Ltd v J.M. Hargreaves Pty Ltd [2004] NSWSC 1206

BUILDING & CONSTRUCTION - INJUNCTION - PRACTICE AND PROCEDURE - Progress payments - Building & Construction Industry Security of Payment Act - ex parte application to restrain filing of adjudication certificate - application brought at last possible moment - discretion to refuse application and leave applicant to apply to set aside judgment - policy of Court to refuse last minute ex part applications. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - s.3, s.13(5), s.25(1).

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26th November 2004
Rothnere v Quasar [2004] NSWSC 1151

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination void - s 22(4) - whether s 22(4) applicable - whether compliance with s 22(4) a fundamental requirement of Act - meaning of "valuation" of construction work in s 22(4) - application of Brodyn v Davenport [2004] NSWCA 394 ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Building and Construction Industry Security of Payment (Amendment) Act 2002 - Supreme Court Act 1970

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25th November 2004
Corbett Court v Quasar [2004] NSWSC 1174

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22nd November 2004
Ziade v Tricon [2004] NSWSC 1070

Corporations Act. Building and construction, hearing of originating process seeking to set aside statutory demand, contested adjudication application, property developer, construction manager, construction management agreement. Offsetting claim, whether this was an appropriate supplementation of the initial affidavit or whether the initial affidavit should have provided estimates of the cost. Whether regard could be had to the rectification of Brook Street in the circumstances that Brook Street has now been sold by the developer. Is the offsetting claim genuine. Proceedings dismissed.

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19th November 2004
Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1163

BUILDING AND CONSTRUCTION – PRACTICE AND PROCEDURE – Uniform Civil Procedure Rules 2005 (NSW) Pt 20 r 20.24 –Both parties contend that report of referee should be accepted but each party contends for variations – where mistakes of law by referee do not effect ultimate outcome of report – where factual findings made were open to the referee on the evidence – Report adopted without variation except those agreed or not contested LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Uniform Civil Procedure Rules 2005 (NSW) - Supreme Court Rules 1970 (NSW)

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12th November 2004
Property & Equity Developments v Parnell [2004] NSWSC 1035

BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - when payment claim may be served - time when "the construction work to which the claim relates was last carried out", within meaning of section 13(4)(b) ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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11th November 2004
Filipe v Inscope Solutions Pty. Limited [2004] NSWCA 417

BUILDING AND CONSTRUCTION - Progress payments - Judgment - Does not determine final rights of parties.

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8th November 2004
Bell Partners v Kann Finch [2004] NSWSC

Appeal decision of Local Court Magistrate; summary judgment; Building Construction Industry Security of Payment Act 1999 (NSW) ACTS CITED: Building and Construction Industry Security of Payment 1999 (NSW) - s 13 - Local Court (Civil Claims) Act 1970 (NSW) - s 69 - Local Court (Civil Claims) Rules 1988 (NSW) - Pt 10A r 2

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3rd November 2004
Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Adjudication certificate - Consequent judgment - Grounds for judicial intervention - Whether certiorari available - Grounds on which purported determination void - Natural justice - Error of law - Reference dates - Effect of termination of contract or cessation of work - Home Building Act - Effect of absence of licence - Exercise of discretion - Whether other relief available in respect of judgment, including stay of execution. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999 - Home Building Act 1989 ss.3, 4, 10, 11, 94. - Supreme Court Act 1970 s.69

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3rd November 2004
Transgrid v Siemens Ltd. [2004] NSWCA 395

BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Progress claim - Adjudicator's determination - Grounds for judicial intervention - Calculation of progress payment - Meaning of "amount calculated in accordance with the terms of the contract" where contract provides for certification by superintendent - Discretion. LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

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3rd November 2004
Estate Property Holdings P/L v Barclay Mowlem Construction Ltd [2004] NSWCA 393

BUILDING AND CONSTRUCTION - Progress payments - Building and Construction Industry Security of Payment Act - Progress claim - Meaning of "construction work to which the claim relates" - Whether it is the work required by the contract, the work for which payment is claimed, or each item of work for which payment is claimed LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) ss.8, 13-15, 20

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20th October 2004
Cooper v Home Productions P/L (General) [2004] NSWCTTT 597

LEGISLATION: Consumer Claims Act 1998 - Consumer Trader and Tenancy Tribunal Act 2001 - Building and Construction Industry Security of Payment Act 1999 ISSUES: Whether an adjudication under the Building and Construction Industry Security of Payment Act 1999 - ousts the jurisdiction of the Tribunal under the Consumer Claims Act 1998

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7th October 2004
Digital City v QX Australia [2004] NSWSC 933

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - whether interlocutory injunction against advancing of adjudication process, pending determination of whether adjudicator has jurisdiction, should be on terms of requiring payment into Court of amount claimed ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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24th September 2004
Holdmark Developers v G J Formwork [2004] NSWSC 905

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination should be quashed - jurisdictional error of law - s 14(5) of Act - reference date - final payment claim - whether more than one payment claim made in respect of the one reference date - whether payment claims could only be made during currency of contract - effect of termination or cessation of work - where no contractual provision for the occurrence of reference dates after termination or cessation of work - whether permissible to make a series of payment claims after termination but within relevant limitation period - discretion to withhold relief ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Building and Construction Industry Security of Payment Amendment Act 2002

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16th September 2004
Beckhaus v Brewarrina 1 [2004] NSWSC 840

Building and Construction - Contract - Claim for payment under contract to build earthwork levees - Whether payment claim valid - Cross-claim - Whether lump sum contract - Whether amount properly allowable for provisional variations - Whether practical completion achieved - Whether contractual requirements for progess claim met - Whether any breach of contract in respect of construction of levees - Whether Building and Construction Industry Security of Payment Act 1999 (NSW) applies -Misleading or deceptive conduct in the tender process. Held: Practical completion not achieved. Contract was lump sum contract containing appropriate conditions for provisional quantities. Council entitled to damages for rectification of certain parts of the levees. Misleading and deceptive conduct established but no damges...

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13th September 2004
Minister for Commerce v Contrax Plumbing [2004] NSWSC 823

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether adjudication determination should be quashed - whether adjudicator erred in law in his construction of s 34 of the Act - whether adjudicator failed to determine defendant's entitlement in accordance with the terms of the contract - whether adjudicator erred in reaching his determination on a basis not advanced by defendant in its payment claim and therefore not considered by plaintiff in its payment schedule - whether adjudicator committed jurisdictional error by determining the adjudication application on basis of arguments advanced by defendant for first time in that application - whether adjudicator committed jurisdictional error by not considering the plaintiff's response to matters advanced by defendant for the first time in its adjudication application - whether relief should...

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9th September 2004
Emergency Services Superannuation Board v Robert Sundercombe [2004] NSWSC 405

[ADMINISTRATIVE LAW]: Whether jurisdictional error by adjudicator justifying the quashing of the adjudicator's determination - [STATUTE]: Whether circumstances in which a determination is quashed is a circumstance that fits within s. 26(1)(b) of the Building & Construction Industry Security of Payment Act 1999 allowing the withdrawal of the adjudication application - Whether events which occurred after quashing of first determination precluded the further adjudication applicationACTS CITED: Building & Construction Industry Security of Payment Act 1999 (NSW)

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13th August 2004
Isis Projects v Clarence Street [2004] NSWSC 714

BUILDING AND CONSTRUCTION Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant paid part of one progress claim and none of another - whether plaintiff entitled to recover amounts unpaid as a debt - where progress claims identified work by single line item references - whether progress claims identified the construction work to which they related - requirement in s 13(2)(a) that a payment claim identify the construction work to which the payment relates - where defendant did not object to form of payment claim on eleven prior occasions - where contractual clause requiring payment claim to be suported by evidence - whether progress claims suported by sufficient evidence - where defendant had not provided payment schedule or paid whole or part of claimed amount by due date application of s 15(4)(b)(ii).

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13th August 2004
Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where plaintiff moves for summary judgment - whether defendant has arguable defence to preclude plaintiff from obtaining summary judgment - where document alleged to be payment schedule did not indicate the payment defendant intended to make - whether defendant provided payment schedule for purposes of s 14 - requirements of payment schedules - whether question to be determined on final hearing and not by way of summary judgment - estoppel by representation - where alleged representation that parties take no further step in response to claim until negotiations take place - whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim - whether estoppel defence prohibited by s 34 - whether question to be resolved on application...

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23rd July 2004
Kembla Coal & Coke v Select Civil [2004] NSWSC 628

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - whether adjudication determination should be quashed - jurisdictional error - jurisdictional fact - whether adjudicator in jurisdictional error by determining amount due where no reference date to which payment claim related - whether existence of reference date a jurisdictional fact - whether adjudicator erred in law by determining application on basis that amendments to Act applied - whether defects liability period commenced "on" date of practical completion or "from" date of practical completion - meaning of time commencing "on" a day - whether validity of notice affected by illegibility - whether adjudicator erred in law by making allowance in determination for costs of preparation of claim - construction of "for" in "for construction work" in s 4 definition of "claimed amount" - whether adjudicator...

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20th July 2004
Barclay Mowlem Construction Ltd v Estate Property Holdings P/L [2004] NSWSC 658

Building and Construction Industry Security of Payment Act 1999 (NSW) - Entry of summary judgment - Stay of judgment in part - Statutory scheme considered in relation to pending appeal

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19th July 2004
Barclay Mowlem Construction Ltd v Estate Property Holdings P/L [2004] NSWSC 649

Contract - Proper construction of S.13(4)(b) of Building and Construction Industry Security of Payment Act 1999 (NSW) -Validity of payment claim ACTS CITED:Building and Construction Industry Security of Payment Act 1999 (NSW)

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7th July 2004
Emergency Services Superannuation Board v Davenport [2004] NSWSC 697

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudication determination should be quashed - Where alleged that adjudicator determined claim on basis explicitly disavowed by second defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so - Whether determination vitiated by denial of natural justice - Whether determination vitiated by adjudicator's alleged failure to consider relevant provision of contract and plaintiff's submissions thereon s22(2)(b) - Whether payment claim compiled with s 13(2)(a) of the Act - Whether discretion to grant prerogative relief should be exrcised ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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18th June 2004
Walter Construction Group v The Robbins Company [2004] NSWSC 549

PRACTICE AND PROCEDURE - Mareva orders - dispute under Building and Construction Industry Security of Payment Act 1999 (NSW) - where defendant is an American corporation - where work conducted in Australia through a subsidiary - where subsidiary has made substantial losses - where defendant has no assets in Australia apart from shareholding in subsidiary, debts owed to it by subsidiary, and adjudicated amount under Act - whether facts reveal a sufficient basis for grant of a Mareva order - whether power to grant a Mareva order enlivened by problems of enforcement within the jurisdiction, or enlivened by problems of enforcement generally

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11th June 2004
Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553

CORPORATIONS - winding up - statutory demand - application to set aside or vary on basis of offsetting claim - statutory demand based on judgment debt arising from determination under Building and Construction Industry (Security of Payment) Act 1999 - whether possible to have an offsetting claim against such a judgment debt - whether offsetting claim established on the facts - STATUTES - ACTS OF PARLIAMENT - operation and effect of statutes - Building and Construction Industry (Security of Payment) Act 1999 - whether judgment debt arising from adjudication under that Act can be subject of an "offsetting claim" for purposes of section 459H(5) Corporations Act 2001 (Cth) - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - adjudication under Building and Construction Industry (Security of Payment) Act 1999 becomes subject of judgment debt - whether able to be the subject...

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11th May 2004
Rail Infrastructure Corporation v Veghelyi [2004] NSWSC 427

PROFESSIONS AND TRADES - builders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment - ADMINISTRATIVE LAW - prerogative writs and orders - Building and Construction Industry (Security of Payment) Act 1999 - whether effect of section 25(4)(a)(iii) is that once a judgment has been obtained, that judgment cannot be attacked on the basis of jurisdictional error in the certificate which led to the entry of the judgment ACTS CITED: Building and Construction Industry (Security of Payment) Act 1999

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27th April 2004
Grosvenor Constructions (NSW) P/L (in administration) v Musico [2004] NSWSC 344

Building and construction - Practice and procedure - Stay of judgment debt - Progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 - Plaintiff obtains adjudication certificate pursuant to section 24 of Act and files adjudication certificate as a judgment for debt pursuant to section 25 of Act - Plaintiff placed under external administration-Defendants seek stay of proceedings - Evidence that defendants, if successful in final proceedings, would suffer irreparable prejudice as payment pursuant to the judgment debt could never be recouped - A failure to order the stay would in practice convert an amount which ought to be an interim payment into a final payment - Principles to be applied on application for stay of judgment debt - English authorities examined ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - ...

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21st April 2004
ACA v Sullivan; Austruc v ACA [2004] NSWSC 304

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - s 7(2)(a) - construction of "forms part of" - whether construction contract formed part of loan agreementACTS CITED: Building and Construction Industry Security of Payment Act 1999

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21st April 2004
De Martin & Gasparini P/L v Energy Australia P/L [2004] NSWSC 336

[INJUNCTIONS] - Application to discharge injunction - changed circumstances alleged - Service of final certificate under construction contract - Whether serious issue to be tried in relation to validity of final certificate - Balance of convenience - Applicant placed into liquidation after injunction granted. ACTS CITED: Building & Construction Industry Security of Payment Act 1999 - Corporations Act 2001

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20th April 2004
John Holland Pty Ltd v Cardno MBK (NSW) Pty Ltd [2004] NSWSC 258

Challenge to determination of adjudicator under the Building and Construction Industry Security of Payment Act 1999 - Statutory scheme dictates that the adjudication response be relevantly tied to the payment schedule [such that the adjudication response cannot include any reasons for withholding payment unless those reasons have already been included in the payment schedule - Section 20 (2B)] - Whether adjudication application should also be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim] - Scheme of legislation - Adjudicator's powers - Adjudicator does not have the power to consider materials supplied by a claimant in its adjudication application which go outside [ie fall outside the ambit or scope of] the materials which were provided in...

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2nd April 2004
Brodyn Pty Ltd v Davenport & Anor [2004] NSWSC 254

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Whether an order in the nature of certiorari lies against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 - Whether certiorari should be granted when judgment had been entered for the adjudicated amount - Whether s 25 of the Act rendered an order in the nature of certiorari futile ACTS CITED: Supreme Court Act 1970 - Building and Construction Industry Security of Payment Act 1999

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29th March 2004
Isis Projects P/L v Clarence Street Ltd [2004] NSWSC 222

Contract - Building and Construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - Amendments effected by the Building and Construction Industry Security of Payment Amendment Act 2002 - Whether following amending legislation the Act requires the respondent upon receiving a payment claim to set out any objection it may have to the claim (whether it be an objection arising out of the contract or otherwise) in a payment schedule, failing which the respondent is liable to pay the claim whether or not the claimant be in fact entitled to the progress payment - Application for summary judgment - Whether General Steel principles apply upon an application for summary judgment pursued by reference to the Building and Construction Industry Security of Payment Act 1999 where the parties final rights are reserved

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12th March 2004
Brambles Australia Ltd v Philip Davenport [2004] NSWSC 120

Building and construction - progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 (NSW) - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Act is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is available - Natural justice in relation to costs - Proper construction of section 7(2)(c) of the Act - Whether the consideration payable for construction work carried out under the contract or for related goods and services supplied under the contract was to be calculated by reference to the value of the work carried out or the value of the goods and services supplied - ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Evidence Act 1995 (NSW) - Interpretation...

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4th March 2004
Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116

ADMINISTRATIVE LAW - judicial review of determination of adjudicator under Building and Construction Industry Security of Payment Act - whether jurisdicitonal error of law - unpaid balance of lump sum price awarded as progress payment where contract terminated and part of contracted work incomplete ACTS CITED: Building and Construction Industry Security of Payment Act 1999, ss.8, 9, 10, 13, 14, 22

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4th March 2004
Quasar Constructions v A J Stockman Pty Ltd [2004] NSWSC 117

ADMINISTRATIVE LAW - judicial review of determination of adjudicator under Building and Construction Industry Security of Payment Act - whether jurisdictional error of law - requirement that adjudicator have regard to contract price in assessing value of work - whether adjudicator exercised judgment ACTS CITED: Building and Construction Industry Security of Payment Act 1999, ss.8, 9, 10, 22

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3rd March 2004
MD Webster Constructions P/L v Rhinosteel P/L [2004] NSWSC 106

Appeal of local court registrar's decision - set aside default judgment ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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26th February 2004
Paynter Dixon v Tilston [2004] NSWSC 85

Administrative Law - decision of adjudicator appointed under the Building & Construction Industry Security of Payment Act 1999 (NSW) - order in the nature of certiorari sought - held no jurisdictional error on part of adjudicator. - Trade Practices - misleading or deceptive conduct - whether attachment to payment claim constituted misleading or deceptive conduct - held no misleading or deceptive conduct.

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25th February 2004
Transgrid v Siemens [2004] NSWSC 87

ADMINISTRATIVE LAW - Whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW) is open to judicial review - Order in the nature of certiorari sought - discretionary considerations as to the granting of relief - relief refused on discretionary grounds. CONTRACT LAW - Construction contract - progress claims issued pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) - Discussion as to whether an adjudicator can exercise the powers of a certifier under the construction contract.

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24th February 2004
Arpic P/L v Austin Australia P/L [2004] NSWSC 83

CORPORATIONS - voluntary administration - leave to proceed against defendant company in administration - whether plaintiff's application to amend summons is caught by s.440D - whether leave to proceed should be granted in respect of amendment application and summary judgment application where plaintiff seeks restitution on basis of conduct declared by statute to be "unlawful" ACTS CITED: Building and Construction Industry Security of Payments Act 1999, s.23, Part 3 of Schedule 2 -Corporations Act 2001 (Cth), s.440D

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23rd February 2004
Isis v Clarence [2004] NSWSC 73

Practice & Procedure - Summary judgment application pursuant to Pt 15 r 2 of Supreme Court Rules - motion dismissed - Contract Law - Construction contract - progress claims issued pursuant to Building & Construction Industry Security of Payments Act. Whether payment claims could be made between practical completion and the expiration of the defects liability period. Held no triable issue. Whether progress claims were supported by the evidence and information required by the contract and the Act. Held to be a triable issue - whether progress claims made in conravention of s13(5) of the Act. Held no triable issue.

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19th February 2004
Austruc v ACA; ACA v Sarlos [2004] NSWSC 131

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - progress claim - adjudication determination - slip rule - judgment entered under incorrect case number - whether slip rule applicable - meaning of "forms part of" in s 7(2)(a) of Act - whether contract formed part of loan agreement ADMINISTRATIVE LAW - order in the nature of certiorari - jurisdictional error of law - procedural fairness - whether adjudicator permitted to consider statutory declaration attached to adjudication application - meaning of "submissions" in ss 17(3) and 20(2) of Act - whether adjudicator required to give notice of intention to rely upon statutory declaration - whether adjudicator required to give respondent opportunity to respond to statutory declaration ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Building & Construction Industry...

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18th February 2004
MPM Constructions v Trepcha Constructions [2004] NSWSC 103

BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - progress payment - adjudication application - adjudication determination made out of time - whether adjudication determination made out of time invalid ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - The Housing Grants, Construction and Regeneration Act 1996

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6th February 2004
Transgrid v Walter Construction Group [2004] NSWSC 21

ADMINISTRATIVE LAW - construction contracts - determination of adjudicator under Building and Construction Industry Security of Payment Act 1999 - whether jurisdiction to review - whether jurisdictional error of law - whether Superintendent's certification binding on adjudicator - whether denial of natural justice ACTS CITED: Building and Construction Industry Security of Payment Act 1999

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4th December 2003
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140

ADMINISTRATIVE LAW - Whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is open to judicial review - whether an adjudication may be reviewed for error of law on the face of the record - the extent of an adjudicator's jurisdiction - what must be disclosed by a payment schedule under the Act - whether there were errors of law going to jurisdiction - whether whole Determination must be quashed - discretionary considerations as to granting of relief - consequences where Determination quashed. ACTS CITED: - - Building and Construction Industry Security of Payment Act 1999 (NSW) - s.2, s.3, s.8, s.9, s.10, s.11, s.13, s.14, s.15, s.16 s.17, s.18, s.19, s.20, s.21, s.22, s.23, s.24, s.25, s.26, s.27, s.32, s.34 - - Corporations Act 2001 (Cth) - s.459E - - Migration Act 1958 (Cth) - - Supreme Court Act 1970 (NSW) - s.69

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3rd December 2003
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103

Contract - building and construction - Building and Construction Industry Security of Payment Act 1999 (NSW) - Consideration of interrelationship of sundry provisions and analysis of principal's claimed entitlement to commence separate proceedings and/or to avoid summary judgment by invoking discretionary considerations - Progress claim submitted to Superintendent on same date as document purporting to be payment claim under the Act submitted to principal - Principal fails to serve payment schedule complying with sections 14(1) and (2) - Contractor commences proceedings and seeks summary judgment - Principal commences separate proceedings and seeks declaration that it does not owe any amount to contractor in respect of specific progress claim in excess of the amount specified in progress certificate issued by Superintendent and order that principal pay to the contractor such...

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14th November 2003
Abacus v Davenport [2003] NSWSC 1027

ADMINISTRATIVE LAW - whether, and on what grounds, prerogative relief is available against the determination of an adjudicator under the Building & Construction Industry Security of Payment Act - jurisdictional error - errors of law on the face of the recordACTS CITED: Building & Construction Industry Security of Payment Act 1999 - Contractors Debts Act 1997

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7th November 2003
Pasquale Lucchitti t/a Palluc Enterprises v Tolco P/L [2003] NSWSC 1070

[INJUNCTIONS] - Whether the First Defendant should be restrained from taking any steps in relation to an adjudication determined by the Second Defendant in respect of a dispute between itself and the Plaintiffs - Whether adjudicator exceeded his jurisdiction in determining the dispute under the Building and Construction Industry Security of Payment Act 1999 (NSW)ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Supreme Court Act 1970 (NSW)

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6th November 2003
Brodyn P/L t/a Time Cost & Quality v Philip Davenport [2003] NSWSC 1019

Building and construction - progress payments claimed under the Building and Construction Industry Security of Payment Act 1999 - determination made by adjudicator - Administrative law - whether, and if so to what extent, judicial review of adjudications made pursuant to the Building and Construction Industry Security of Payment Act 1999 is available - scope of relief available in the nature of a writ of certiorari - grounds upon which judicial review is availableACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Home Building Act, 1989 (NSW) - Supreme Court Act 1970 (NSW)

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4th November 2003
Max Cooper v Booth [2003] NSWSC 929

Corporations Law. Application to set aside statutory demand. Demand based upon judgment pursuant to an adjudicator's determination under the Building & Construction Industry Security of Payment Act 1999. Whether a contractural ofsetting claim can be used to set aside the demand. Estoppel whether adjudicator's decision give rise to res judicata.ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Building and Construction Industry Security of Payment Amendment Bill 2002 -Corporations Act 2001

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31st October 2003
Musico v Davenport [2003] NSWSC 977

ADMINISTRATIVE LAW - whether the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is open to judicial review and upon what grounds - whether there were errors of law, jurisdictional errors or denial of natural justice - whether discretionary reasons for refusal of reliefACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Building and Construction Industry Security of Payment Amendment Act 2002 - Corporations Act 2001 -Supreme Court Act 1970

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29th October 2003
Emag Constructions P/L v Highrise Concrete Contractors (Aust) P/L [2003] NSWSC 988

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20th October 2003
Abacus Funds Management Ltd v Davenport [2003] NSWSC 935

ADMINISTRATIVE LAW - Prerogative Writs and Orders - Whether an order in the nature of certiorari lies against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 - Whether interlocutory relief should be granted ACTS CITED: Building and Construction Industry Security of Payment Act 1999 - Supreme Court Act 1970 - Building and Construction Industry Security of Payment Amendment Act 2002

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10th October 2003
Masterton Homes P/L v Executive Builders & Developers P/L [2003] NSWSC 908

VENDOR and PURCHASER - sale off the plan - entitlement to rescind where not registered in time available - Purchaser obtained interlocutory injunction to restrain rescission where prima facie case that Vendor in breach of contractual obligation to do whatever is reasonably necessary: 2000 Edition cl.29. ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)

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26th September 2003
Emag Constructions P/L v Highrise Concrete Contractors (Aust) P/L [2003] NSWSC 903

Contract -construction contract - payment claim - non-payment of amount claimed -Building and Construction Industry Security of Payment Act 1919 (NSW) - progress payment claim - payment schedule of $Nil - adjudication attempted service of adjudication application - appointment of adjudicator -failure to provide adjudication response - validity of acceptance of appointment by adjudicator - jurisdiction of adjudicator to adjudicate -validity of determination given by adjudicator - sections 13, 14, 17, 19, 20, 21, 31 of the Act - Service - ordinary meaning of "service" - validity of service of documents on legal representatives -principles of actual or ostensible authority in solicitors to receive service of copies of relevant notices -statutory construction - formal and strict requirements to observe time stipulations in the Act

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25th September 2003
Paynter Dixon Constructions P/L v JF & CG Tilston P/L [2003] NSWSC 869

[STATUTORY ADJUDICATION] -Statutory regime for recovery of progress payments under construction contracts - Application for injunction permanently restraining an adjudication - Whether adjudicator validly appointed - Whether adjudicator has jurisdiction to determine a dispute in relation to a Payment Claim that contained a claim conceded to be appropriately made under s 13 of the Building and Construction Industry Security of Payment Act 1999, but which also included a contentious claim for damages or loss of profits for alleged wrongful repudiation of a contract.ACTS CITED: Building and Construction Industry Security of Payment Act 1999 (NSW) - Building and Construction Industry Security of Payment Amendment Act 2002 (NSW)

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17th September 2003
Amflo Constructions P/L v Anthony Jefferies [2003] NSWSC 856

STATUTES - ACTS OF PARLIAMENT - interpretation - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made - CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - time within which application for adjudication must be made Building and Construction Industry Security of Payment Act 1999Building and Construction Industry Security of Payment Amendment Act 2002Interpretation Act 1987Statute Law (Miscellaneous Provisions) Act 2003

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27th August 2003
Isak Constructions v Faress [2003] NSWSC 784

CORPORATIONS - statutory derivative action - meaning of "an officer or former officer of the company" - unresolved question whether director removed from office - whether appropriate to grant leave when notice requirement in s.237(2)(e)(i) not satisfiedACTS CITED: Corporations Act 2001 (Cth), ss.236, 237

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9th July 2003
Karimbla Construction v Alliance Group Building [2003] NSWSC 617

CORPORATIONS - winding up - statutory demand - application to set aside - genuine dispute based on Building and Construction Industry Security of Payment Act shown - allegation of such dispute not shown in any way by s.459G(3) affidavit - offsetting claim also alleged - widely differing amounts attached by serving party to claims for unliquidated damages - whether precise amount necessary when all asserted figures greatly exceed debt claimed by statutory demandACTS CITED: Building and Construction Industry Security of Payment Act 1999, ss.13 and 14 - Corporations Act 2001 (Cth), ss.459G and H

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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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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)

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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...

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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

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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

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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.

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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)

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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

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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

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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

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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)

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14th September 2001
Baulderstone Hornibrook P/L v HBO+DC P/L [2001] NSWSC 821

[PRACTICE & PROCEDURE] - Summary Judgment applications in the Construction List - Practice Notes - Administration of List - Application to refer Motion for Summary Judgment to call over - Whether referral is consistent with the just, quick and cheap resolution of the litigation.ACTS CITED: Building and Construction Industry Security of Payment Act (1999) (NSW)

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13th August 2001
Bourke Road P/L v Boxster Constructions P/L [2001] NSWSC 717

CORPORATIONS [216]- Winding up- statutory demand- Defective- Point not taken in time- Other invalid attacks made on demand- Giver of demand now in liquidation- Whether demand can or should be set aside.ACTS CITED: Corporations Law, ss 459G, 459J - Building & Construction Industry Security of Payment Act, 1999, s 11

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9th July 2001
AB & MA Chick (Vic) P/L (In Liq) v 526 Olive Street P/L [2001] NSWSC 575

Application for summary judgment in respect of balance of Progress Claim withheld by agreement. [INTERLOCUTORY MANDATORY INJUNCTION] - Whether such should be granted where no undertaking as to damages proffered and a lack of capacity to reinstate guarantee. Plaintiff in liqudiation prior to calling upon guarantee.

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14th June 2001
Zhang (Julie) v Canterbury City Council [2001] NSWCA 167

ADMINISTRATIVE LAW - consent to development applications - requirement to "take into consideration" development control plan - Environmental Planning and Assessment Act 1979, s79C(1) - ADMINISTRATIVE LAW - appeal on question of law - Land and Environment Court Act 1979, s56A. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 - Land and Environment Court Act 1979

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11th March 2001
Consolidated Constructions Pty Ltd v Ettamogah Pub [2004] NSWSC 110

Building and Construction - Building and Construction Industry Security of Payment Act 1999 - whether s 7(2)(a) applicable - meaning of "forms part of" in s 7(2)(a) - legislative purpose of s 7 - whether plaintiff may serve a progress claim under s 13 - whether "progress payment" has same meaning in Act as it does under the construction contract - effect of amendments to (inter alia) s 13 by Act No. 133 of 2002

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