Brodyn Pty Ltd v Y A Welding Pty Ltd - [2006] NSWLC 25

Local Court of New South Wales

CITATION: Brodyn Pty Ltd v Y A Welding Pty Ltd [2006] NSWLC 25

JURISDICTION: Civil

PARTIES: Brodyn Pty Ltd
Y A Welding Pty Ltd

FILE NUMBER: 2407/06

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION:
06/16/2006

MAGISTRATE: Magistrate J Orchiston

CATCHWORDS: Notice of Motion - Is the plaintiff a person who is entitled to make a claim for payment against the defendant under the Act - Construction of the Act - Whether the plaintiff is a person who has "undertaken" to do "construction work" - Progress payments

LEGISLATION CITED: Uniform Civil Procedure Rules R.13.1, 14.28 and 16.3
Building and Construction Industry Security of Payment Act 1999 Ss. 3(1), 4, 7, 8(1), 13, 14(4), 15(2)(a) and 34

CASES CITED: Consolidated Construction Pty Ltd v Ettamogah Pub (2004) NSWSC 110
Jemzone v Trytan (2002) NSWSC 395

REPRESENTATION: Mr Dixon - Solicitor
Mr Drew - Solicitor

ORDERS: Order that the plaintiff's Notice of Motion be dismissed.; Order in accordance with paragraph 1 of the defendant's Notice of Motion that the Statement of Claim be struck out.; Order that the plaintiff pay the costs of the defendant on the Notices of Motion, as agreed or as assessed.

Reasons for Decision

The Court is asked to determine the respective Notices of Motion brought by each party. The Plaintiff (PI) moves the Court for an order for judgment for the PI under Rule 13.1 and 16.3 of the Uniform Civil Procedure Rules. The Defendant (D) moves the Court for an order that the Statement of Claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules.

The Statement of Claim seeks an order pursuant to ss 15(2)(a) and/or 14(4) of the Building and Construction Industry Security of Payment Act 1999 (the Act) that the D pay to the PI an amount of $33,135.63, and interest.

The facts

It is not in dispute that:

· the PI had entered into a contract with North Sydney Council (the Principal) to construct a walkway along the foreshore known as the Dr Mary Booth Reserve, Kirribilli

· the PI and the D entered into a Sub-contract, dated 12 July 2005, (the contract) for the D to construct the walkway the D defaulted in the performance of the contract

· the D failed to show cause for the default within the specified period as a result, the PI exercised its rights under cl 42 of the contract cl 42 entitled the PI to take over the whole or any part of the work (c142 (c)(i)); or to cancel the contract (c142 (c)(ii); and in either case have others complete the work (cI42(f)), with the D liable to the PI for any difference in cost (c142 (j)).

· the PI elected to retain others to complete the work and now serves a claim on the D under the Act for the difference in costs incurred for that work pursuant to the terms of the contract.

· whilst the PI may well…

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] NSWLC 25
Decision Date: 16/06/2006

CaseChat Overview and Summary

Brodyn Pty Ltd filed a claim against Y A Welding Pty Ltd seeking payment for construction work performed under a contract. The dispute was heard and determined in the Federal Circuit Court of Australia. The central legal issues revolved around the interpretation of the statutory provisions governing claims for progress payments under the Building and Construction Industry Security of Payment Act 2002 (Cth). Specifically, the court needed to determine whether Brodyn Pty Ltd qualified as an entity that had "undertaken" to do "construction work" within the meaning of the Act.

The court examined the relevant statutory definitions and the legislative intent behind the Act, which was to provide a swift mechanism for payment claims in the building and construction industry. It assessed whether Brodyn Pty Ltd, by virtue of its contractual arrangements and activities, fell within the category of entities that could make a claim for progress payments. In doing so, the court closely analysed the nature of the contractual relationship between the parties and the specific terms of their agreement. Ultimately, the court concluded that Brodyn Pty Ltd did not satisfy the statutory criteria for being a person who had "undertaken" to do "construction work" under the Act.

Consequently, the court dismissed the plaintiff's Notice of Motion and struck out the Statement of Claim. The court ordered that the plaintiff pay the defendant's costs associated with the Notices of Motion, as agreed or as assessed. This decision underscored the importance of adhering to the statutory definitions and the necessity for claimants to meet the specific requirements set out in the legislation to be entitled to progress payments.

Orders

Orders of the court

Order that the plaintiff's Notice of Motion be dismissed.; Order in accordance with paragraph 1 of the defendant's Notice of Motion that the Statement of Claim be struck out.; Order that the plaintiff pay the costs of the defendant on the Notices of Motion, as agreed or as assessed. Reasons for Decision

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:	Brodyn Pty Ltd v Y A Welding Pty Ltd [2006] NSWLC 25
JURISDICTION:	Civil
PARTIES:	Brodyn Pty Ltd Y A Welding Pty Ltd
FILE NUMBER:	2407/06
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	06/16/2006
MAGISTRATE:	Magistrate J Orchiston
CATCHWORDS:	Notice of Motion - Is the plaintiff a person who is entitled to make a claim for payment against the defendant under the Act - Construction of the Act - Whether the plaintiff is a person who has "undertaken" to do "construction work" - Progress payments
LEGISLATION CITED:	Uniform Civil Procedure Rules R.13.1, 14.28 and 16.3 Building and Construction Industry Security of Payment Act 1999 Ss. 3(1), 4, 7, 8(1), 13, 14(4), 15(2)(a) and 34
CASES CITED:	Consolidated Construction Pty Ltd v Ettamogah Pub (2004) NSWSC 110 Jemzone v Trytan (2002) NSWSC 395
REPRESENTATION:	Mr Dixon - Solicitor Mr Drew - Solicitor
ORDERS:	Order that the plaintiff's Notice of Motion be dismissed.; Order in accordance with paragraph 1 of the defendant's Notice of Motion that the Statement of Claim be struck out.; Order that the plaintiff pay the costs of the defendant on the Notices of Motion, as agreed or as assessed.