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Bellerive Homes Pty Ltd v FW Projects Pty Ltd

Bellerive Homes Pty Ltd v FW Projects Pty Ltd

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Case Copied 6 March 2019 83 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
Hearing dates: 3 and 4 December 2018
Decision date: 06 March 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The notice of motion filed on 21 August 2018 is dismissed.
(2) The plaintiff is to pay the defendant’s costs on the ordinary basis.
Catchwords:
CONTEMPT – civil contempt – where parties entered into design and construction contract – where application made under the Building and Construction Industry Security of Payment Act 1999 (NSW) for adjudication of contractual dispute – where adjudication was that plaintiff entitled to judgment for $1,110,063.83 – where adjudication certificate filed as judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicated sum unsatisfied – where plaintiff seeks defendant be punished for contempt by declaration, sequestration order, fine or other orders – where defendant made no case submission – whether prima facie case respondents guilty of contempt – May v O’ Sullivan (1955) 92 CLR 654; [1995] HCA 38 – whether failure to pay a judgment debt is capable of constituting civil contempt – whether relevant distinction between a judgment debt and other order to pay money
CIVIL PROCEDURE – civil contempt – where adjudication certificate filed as a judgment for a debt pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where judgment given file number – where contempt proceedings commenced by notice of motion – whether proceedings should have commenced by way of summons – Supreme Court Rules 1970 (NSW), Part 55, rule 6(2) – Civil Procedure Act 2005 (NSW), s 63, 133(2)
Legislation Cited: Absconding Debtors Act 1978 (NT)
Arrest on Mesne Process Act 1902 (NSW), ss 4, 5, 6
Building and Construction Industry Security of Payment Act 1999 (NSW), Div 2, Pt 3, s 25(1)
Civil Proceedings Act 2011 (Qld), s 100
Civil Procedure Act 2005 (NSW), ss 3, 63, 90, 107, 130, 131, 133
Court Procedure Rules 2006 (ACT), rr 2001, 2500
Corporations Act 2001 (Cth), ss 459G, 459H, 459J
Criminal Procedure Act 1986 (NSW), Part 1, Sch 3
Debtors Act 1869 (UK), s 5
Enforcement of Judgments Act 1991 (SA) s 5(7)
Evidence Act 1995 (NSW), ss 81, 82, 87
Home Building Act 1989 (NSW), s 18B
Imprisonment for Debt Abolition Act 1846 (NSW), ss 2, 3
Imprisonment of Fraudulent Debtors Act 1958 (Vic)
Judgment Creditors’ Remedies Act 1901 (NSW), ss 19, 20
Judgment Debt Recovery Act 1984 (Vic), s 19
Restraint of Debtors Act 1984 (WA)
Supreme Court Act 1970 (NSW), ss 16, 96
Supreme Court Amendment Act 1972 (NSW), s 3(d)
Supreme Court Rules 1970 (NSW), Pt 55, rr 6, 11.6
Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 37.3, 39, 40.6
Cases Cited: Advan Investments Pty Ltd v Gleeson Motor Sales Pty Ltd [2003] VSC 201
Australian Competition and Consumer Commission v…

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: [2019] NSWSC 193
Decision Date: 06 March 2019

CaseChat Overview and Summary

In the case of Bellerive Homes Pty Ltd v FW Projects Pty Ltd, the plaintiff, Bellerive Homes, sought to enforce an adjudication certificate filed as a judgment for a debt under the Building and Construction Industry Security of Payment Act 1999 (NSW). The certificate, issued after adjudication of a contractual dispute, awarded Bellerive Homes $1,110,063.83 against FW Projects. Despite the filing of the adjudication certificate as a judgment, FW Projects failed to satisfy the debt. Bellerive Homes then initiated contempt proceedings against FW Projects for failing to comply with the judgment.

The primary legal issue in this case was whether FW Projects' failure to pay the adjudicated sum constituted civil contempt. The court needed to determine whether the failure to pay a judgment debt could be classified as civil contempt and whether there was a distinction between a judgment debt and other orders to pay money. Additionally, the court considered procedural matters, such as whether the contempt proceedings should have been initiated by summons rather than a notice of motion, in accordance with the Supreme Court Rules 1970 (NSW) and the Civil Procedure Act 2005 (NSW).

The court held that FW Projects' failure to pay the adjudicated sum could indeed constitute civil contempt. The court reasoned that the distinction between a judgment debt and other orders to pay money was not relevant for the purposes of determining contempt. The court also noted that the proceedings could be initiated by notice of motion, aligning with the Civil Procedure Act 2005 (NSW). Ultimately, the court found that a prima facie case of contempt was made out, and the matter was remitted for further hearing to determine whether FW Projects was guilty of contempt.

The court ordered that the matter be remitted for further hearing to determine whether FW Projects was guilty of contempt. The court also clarified that the proceedings could be initiated by notice of motion, as per the Civil Procedure Act 2005 (NSW).

Orders