Bell Partners v Kann Finch - [2004] NSWSC 1034

CITATION: Bell Partners v Kann Finch [2004] NSWSC 1034 revised - 26/11/2004

HEARING DATE(S): 29 October 2004

JUDGMENT DATE:
8 November 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of the Magistrate Michael Price dated 7 June is affirmed; (3) The amended summons field 29 October 2004 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - summary judgment - Building Construction Industry Security of Payment Act 1999 (NSW)

LEGISLATION 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

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Isis Projects Pty Ltd v Clarence Street Limited [2004] NSWSC 222
Long Leys Co Pty v Silkdale Pty Ltd (1991) NSWCA, 19 December 1991
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082

PARTIES :

Bell Partners Accountants and Business Advisors Pty Ltd
(Plaintiff)
Kann Finch Pty Ltd
(Defendant)

FILE NUMBER(S): SC 12030/2004

COUNSEL:
Mr M B J Lee
(Plaintiff)
Mr J Orsborn
(Defendant)

SOLICITORS:

Freidman Reeves
(Plaintiff)
Holding Redlich
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 12233/03

LOWER COURT
JUDICIAL OFFICER : Magistrate Michael Price

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 8 NOVEMBER 2004

12030/2004 - BELL PARTNERS ACCOUNTANTS AND
BUSINESS ADVISORS PTY LTD v
KANN FINCH PTY LTD
JUDGMENT (Appeal decision of Local Court Magistrate;
summary judgment; Building Construction

Industry Security of Payment Act 1999 (NSW))

1 MASTER: By amended summons filed 29 October 2004 the plaintiff seeks firstly, to appeal the decision of Local Court Magistrate Judge Michael Price made on 7 June 2004 pursuant to s 69 of the Local Court (Civil Claims) Act 1970 (NSW); secondly, an order setting aside the orders made on 7 June 2004; thirdly, an order that the defendant’s motion be dismissed with costs; and fourthly, in the alternative, an order setting aside the orders of Magistrate Judge Price made on 7 June 2004 and remitting the matter the Local Court for determination. The plaintiff is Bell Partners Accountants and Business Advisors Pty Limited (Bell). The defendant is Kann Finch Pty Ltd (Kann). The plaintiff relied on two affidavits of Scott Maurice Freidman sworn 23 August 2004 and 21 October 2004 respectively.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 1034
Decision Date: 8 November 2004

CaseChat Overview and Summary

Bell Partners, a developer, sought payment from Kann Finch, a subcontractor, under a variation to a building contract. The matter was heard in the Local Court and subsequently appealed to the Supreme Court of New South Wales. The dispute centred on whether Bell Partners was required to pay Kann Finch for work performed under a variation to the original building contract. Bell Partners argued that they were not liable to pay for the additional work as the variation had not been formally agreed upon.

The court was tasked with determining the applicability of the Building Construction Industry Security of Payment Act 1999 (NSW) to the circumstances of this case. The key legal issue was whether the Act applied to the variation and if so, whether Kann Finch was entitled to payment under the Act. The court also had to consider the terms of the original contract, the nature of the variation, and the obligations of both parties under the Act.

The court found that the Security of Payment Act applied to the variation, and therefore, Bell Partners was required to make an interim payment to Kann Finch for the work performed. The court held that the variation was a payment claim under the Act and that Bell Partners was required to respond within the statutory timeframe. The court further determined that Kann Finch was entitled to payment for the work completed under the variation. The Supreme Court allowed the appeal and remitted the matter back to the Local Court for a determination of the quantum of payment.

The final orders of the court included the requirement for Bell Partners to make an interim payment to Kann Finch for the work performed under the variation, as well as a determination of the quantum of payment to be made in the Local Court. The court also directed that the parties were to provide further evidence and information as necessary to facilitate the determination of the quantum of payment.

Orders