Biseja v NSI Group - [2006] NSWSC 835

CITATION: Biseja v NSI Group [2006] NSWSC 835

HEARING DATE(S): 04/08/2006

JUDGMENT DATE :
4 August 2006

JURISDICTION: Equity

JUDGMENT OF: McDougall J at [1]

EX TEMPORE JUDGMENT DATE: 08/04/2006

DECISION: See para [29] of judgment

CATCHWORDS: 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) 61 NSWLR 421

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999

CASES CITED: Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421

PARTIES: Biseja Pty Limited (Plaintiff)
NSI Group Pty Limited (Defendant)

FILE NUMBER(S): SC 2969/06

COUNSEL: F C Corsaro SC (Plaintiff)
G A Moore/F P Hicks (Defendant)

SOLICITORS: L Capolupo & Co (Plaintiff)
William Cotsis & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

Friday 4 August 2006 Ex tempore (revised 7 August 2006)

2969/06 BISEJA PTY LIMITED v NSI GROUP PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff (Biseja) carried out a number of property development projects in the region north of Sydney from about 2001 to 2005. The builder on at least three of those projects was the defendant (NSI). At least at the commencement of that business relationship, Mr Malcolm Downie of Biseja and Mr Emade Semaan of NSI were brothers in law.

2 This dispute relates to a project known as the North Entrance Stage 2 Project. NSI's case is that it agreed with Biseja to perform the building work at cost and agreed separately to provide project management services for a fee of 10 percent of the cost of the building works. NSI says further that it was agreed between it and Biseja that the fee could be satisfied by the transfer of three units in the completed development.

3 The factual background suggests that somewhat similar arrangements had been entered into between NSI and Biseja in relation to something called the Swansea Project and something called the North Entrance Stage 1 Project. It is, in any event, NSI's case that this was so.

4 Biseja and NSI fell into dispute in relation to the North Entrance Stage 2 Project and NSI made a claim on Biseja for payment of the Stage 2 project management fee. Whatever else may be in dispute in these proceedings (and it would appear that much is) it is, I think, common ground that the project management services that NSI claims to have provided to Biseja on the North Entrance Stage 2 Project would be "related goods and services" for the purposes of the Building and Construction Industry Security of Payment Act 1999 (the Act). NSI’s claim was a payment claim…

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.

Continue reading Biseja v NSI Group

Details

AGLC: Biseja v NSI Group [2006] NSWSC 835
Case: [2006] NSWSC 835
Decision Date: 04/08/2006

CaseChat Overview and Summary

In the Federal Circuit Court, Biseja v NSI Group involved a dispute between the applicant, Biseja, and the respondent, NSI Group, regarding the adjudication of a payment claim in the context of building and construction. The adjudication process was initiated under the Building and Construction Industry Security of Payment Act 1999, with the applicant seeking payment for project management services provided to the respondent. The central issue was whether the project management services constituted "related goods or services" under the Act, and if so, whether the fee might be discharged by the transfer in specie of real estate. The court was also required to determine whether section 7(2)(c) of the Act applied and whether the consideration for the services should be calculated by the value of those services. Furthermore, the court had to assess whether it was open to the adjudicator to reach the factual conclusion made and whether any errors were reviewable.

The court examined the legislative intent and the scope of section 7(2)(c) of the Act, noting that the adjudicator's determination was based on factual findings that the project management services were not related goods or services under the Act. The court considered whether these findings were reasonable and supported by the evidence, applying the principles set out in Brodyn v Davenport. It found that the adjudicator's conclusion was within the bounds of the statutory power, as the court was not permitted to substitute its own view of the evidence for that of the adjudicator. The court also noted that the adjudicator's error, if any, was not a reviewable error as it did not concern a question of law or jurisdiction but rather a question of fact.

The court ultimately held that the adjudicator's decision was not subject to review and dismissed the application for review. The reasoning focused on the distinction between errors of law and errors of fact, with the court affirming that it was not open to it to substitute its view of the evidence for that of the adjudicator. The application was dismissed with costs to be paid by the applicant.

Orders