Amirbeaggi v Matrix Group Co Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21

Hearing dates:

24 February 2021

Date of orders:

24 February 2021

Decision date:

26 February 2021

Before:

Basten JA; Meagher JA

Decision:

(1)      Refuse the application for leave to appeal from each of the judgments of Johnson J in the Common Law Division of 30 June 2020 and 29 July 2020.

(2)      Order that the applicants pay the respondent’s costs in this Court, assessed on the ordinary basis.

Catchwords:

APPEALS – leave to appeal – where primary judge refused leave to appeal to raise argument not dealt with by magistrate – whether argument made to magistrate – no error of primary judge in concluding not made

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW), s 25(1), (4)

Home Building Act 1989 (NSW), ss 92, 94(1), (3)

Cases Cited:

Hakea Holdings Pty Ltd v Denham Constructions Pty Ltd [2016] NSWSC 1120

Hungry Jack’s Pty Ltd v Fourtounas [2020] NSWCA 325

Category:

Principal judgment

Parties:

Farshad Amirbeaggi (First Applicant)
Brooke Maniscalco (Second Applicant)
Matrix Group Co Pty Ltd (Respondent)

Representation:

Counsel:
N Kidd SC (Applicants)
L Shipway (Respondent)

Solicitors:
Yates Beaggi Lawyers (Applicants)
Advanta Legal (Respondents)

File Number(s):

2020/221679

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 827; [2020] NSWSC 962

Date of Decision:

30 June 2020

Before:

Johnson J

File Number(s):

2019/397879

Judgment

1. THE COURT: The applicants, Mr Amirbeaggi and Ms Maniscalco, seek leave to appeal from two decisions of the primary judge (Johnson J). By the first (Amirbeaggi v Matrix Group Co Pty Ltd [2020] NSWSC 827 (Judgment 1)), his Honour refused the applicants leave to appeal from an interlocutory judgment of the Local Court dismissing their stay application, and by the second (Amirbeaggi v Matrix Group Co Pty Ltd (No 2) [2020] NSWSC 962 (Judgment 2)) ordered the applicants to pay the respondent’s costs of the proceedings in the Supreme Court on an indemnity basis.

2. At the conclusion of oral argument, orders were made dismissing the application for leave to appeal, with costs. These are the Court’s reasons for making those orders.

3. The underlying proceedings relate to a dispute about a payment claim made by the respondent builder (Matrix Group) for works done at the applicants’ residential premises in Woollahra. In October 2016, the respondent was engaged to carry out the building works, which appear to have commenced in November 2016. The parties then signed a building contract in mid-January 2017.

4. By February 2018, they were in dispute, the applicants alleging that the building works were defective, incomplete and delayed. The respondent obtained an adjudication certificate under the Building and Construction Industry Security of Payment Act 1999 (NSW) (Security of Payment Act) and filed it as a judgment in the Local Court for an amount of $60,253 (s 25(1)). That judgment was entered on 20…