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Bitannia Pty Ltd v Parkline Constructions Pty Ltd

Bitannia Pty Ltd v Parkline Constructions Pty Ltd

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Case Copied 28 August 2006 77 min read

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Reported Decision: 67 NSWLR 9

Court of Appeal

CITATION: BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238

HEARING DATE(S): 13 and 14 July 2006

JUDGMENT DATE:
28 August 2006

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 17; Basten JA at 21

DECISION: (1) Appeal allowed; (2) Orders made by the District Court on 3 March 2006 in matter 1998 of 2005 be set aside; (3) In lieu thereof, grant leave to the Appellants in the proceedings in the District Court; (a) to file a defence formulated in accordance with the reasons of this Court within 14 days; and; (b) to reopen their case; (4) Remit the matter to the District Court for determination in accordance with the judgment of this Court; (5) The Respondent pay the Appellants’ costs of the appeal; (6) The Intervenor is to bear its own costs; (7) The costs of the hearing to date in the District Court to be determined by the judge on remittal; (8) The Respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if not disqualified under s 6(7).

CATCHWORDS: 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
District Court Act 1973 (NSW), s8
Judiciary Act 1903 (Cth), ss 39, 64, 79, 80
Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth), s3 and Schedule
Racial Discrimination Act 1975 (Cth), s6
Sex Discrimination Act 1984 (Cth), s10
Trade Practices Act 1974 (Cth), ss 4L, 44, 45D, 47, 52, 75, 80, 82, 86, 87

CASES CITED: Agtrack (NT) Pty Ltd v Hatfield (2005) 79 ALJR 1389
Air Link Pty Ltd v Paterson (2005) 79 ALJR 1407
APLA Limited v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620
Attorney-General (NT) v Hand (1989) 25 FCR 345
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
Bank of New Zealand v Spedley Securities Ltd (In liq) (1992) 27 NSWLR 91
Barclay Mowlem Construction Ltd v Tesrol Walsh Bay Pty Ltd [2004] NSWSC 716
Berry v British Transport Commission [1961] 3 All ER 65
Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421
Butler v Attorney-General…

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: [2006] NSWCA 238
Decision Date: 28 August 2006

CaseChat Overview and Summary

Bitannia Pty Ltd and others (appellants) appealed to the Court of Appeal of New South Wales against a decision of the District Court concerning progress payments under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose from a payment claim made by Parkline Constructions Pty Ltd (respondent) under the Act.

The primary legal issues before the Court of Appeal were whether a claimant under the *Building and Construction Industry Security of Payment Act 1999* must have a bona fide belief in the entitlement to the claimed amount for a payment claim to be valid, and whether a defence based on a breach of section 52 of the *Trade Practices Act 1974* (Cth) could be raised, notwithstanding section 15(4)(b)(ii) of the *Building and Construction Industry Security of Payment Act 1999*. Relatedly, the court considered whether section 109 of the Constitution rendered section 15(4)(b) of the *Building and Construction Industry Security of Payment Act 1999* invalid to the extent that it prevented the raising of such a cross-claim.

The Court of Appeal held that a bona fide belief in the entitlement to the claimed amount was not a prerequisite for a valid payment claim under the Act. Furthermore, the court determined that section 15(4)(b)(ii) of the *Building and Construction Industry Security of Payment Act 1999* did not preclude a respondent from raising a defence or cross-claim based on a breach of section 52 of the *Trade Practices Act 1974* (Cth). The court found that the *Building and Construction Industry Security of Payment Act 1999* did not validly exclude such a defence, and therefore, there was no constitutional inconsistency under section 109.

The appeal was allowed, and the orders of the District Court were set aside. Leave was granted to the appellants to file a defence and reopen their case, with the matter remitted to the District Court for determination in accordance with the judgment. The respondent was ordered to pay the appellants' costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed; (2) Orders made by the District Court on 3 March 2006 in matter 1998 of 2005 be set aside; (3) In lieu thereof, grant leave to the Appellants in the proceedings in the District Court; (a) to file a defence formulated in accordance with the reasons of this Court within 14 days; and; (b) to reopen their case; (4) Remit the matter to the District Court for determination in accordance with the judgment of this Court; (5) The Respondent pay the Appellants' costs of the appeal; (6) The Intervenor is to bear its own costs; (7) The costs of the hearing to date in the District Court to be determined by the judge on remittal; (8) The Respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if not disqualified under s 6(7).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238
HEARING DATE(S):	13 and 14 July 2006
JUDGMENT DATE:	28 August 2006
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 17; Basten JA at 21
DECISION:	(1) Appeal allowed; (2) Orders made by the District Court on 3 March 2006 in matter 1998 of 2005 be set aside; (3) In lieu thereof, grant leave to the Appellants in the proceedings in the District Court; (a) to file a defence formulated in accordance with the reasons of this Court within 14 days; and; (b) to reopen their case; (4) Remit the matter to the District Court for determination in accordance with the judgment of this Court; (5) The Respondent pay the Appellants’ costs of the appeal; (6) The Intervenor is to bear its own costs; (7) The costs of the hearing to date in the District Court to be determined by the judge on remittal; (8) The Respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if not disqualified under s 6(7).
CATCHWORDS:	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 District Court Act 1973 (NSW), s8 Judiciary Act 1903 (Cth), ss 39, 64, 79, 80 Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth), s3 and Schedule Racial Discrimination Act 1975 (Cth), s6 Sex Discrimination Act 1984 (Cth), s10 Trade Practices Act 1974 (Cth), ss 4L, 44, 45D, 47, 52, 75, 80, 82, 86, 87
CASES CITED:	Agtrack (NT) Pty Ltd v Hatfield (2005) 79 ALJR 1389 Air Link Pty Ltd v Paterson (2005) 79 ALJR 1407 APLA Limited v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 Attorney-General (NT) v Hand (1989) 25 FCR 345 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330 Bank of New Zealand v Spedley Securities Ltd (In liq) (1992) 27 NSWLR 91 Barclay Mowlem Construction Ltd v Tesrol Walsh Bay Pty Ltd [2004] NSWSC 716 Berry v British Transport Commission [1961] 3 All ER 65 Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 Butler v Attorney-General…