Built NSW v Evolvebuilt Contracting - [2014] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation: Built NSW v Evolvebuilt Contracting [2014] NSWSC 255
Hearing dates: 13/03/2014
Decision date: 13 March 2014
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Decline to entertain strike-out application. Stand notice of motion over to the hearing.

Catchwords: PROCEDURE - Strike-out application - Practice Note SC Eq 3 - whether appropriate to entertain application to strike out part of proceedings - whether appropriate to strike out part of proceedings where issues arise from same factual matrix - whether to strike out would substantially reduce the burden of preparing for trial or trial itself
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Cases Cited: McCracken v Phoenix Constructions (Qld) Pty Ltd (2012) 2 Qd R 27
Williams and Humbert Ltd v W&H Trademarks (Jersey) Ltd [1986] AC 368
Category: Procedural and other rulings
Parties: Built NSW Pty Limited (Plaintiff / Respondent)
EvolveBuilt Contracting Pty Limited (In Administration) (First Defendant)
ACN 105 478 331 Pty Limited (In Administration) (Second Defendant)
Zac L'Estrange (Third Defendant/Applicant)
Representation: Counsel:
FG Kalyk (Plaintiff)
FM Douglas QC / G Rubagotti / N Kulkarni (Third Defendant)
Solicitors:
Gadens Lawyers (Plaintiff)
Schurgott Noolan & Ardagna Pty Ltd (Third Defendant)

File Number(s): 2013/171914

Judgment (ex tempore - revised 13 March 2014)

HIS HONOUR: I am concerned today with a notice of motion to strike out a prayer for relief in the plaintiff's amended summons, and paragraphs of the list statement that set out the background, the issues, and the "pleadings" relevant to that prayer for relief.

There was a subcontract between the plaintiff and the first defendant, the first defendant having since gone into administration, whereby the first defendant undertook to perform certain building work. The third defendant was the sole director of the first defendant. The plaintiff claims that the first defendant falsely or incorrectly certified payment claims, with the intention that the plaintiff should rely upon them to make payment, and that the plaintiff did so rely upon them. The allegedly false or incorrect certifications related to payment of wages and subcontractors debts. The plaintiff became liable for payment of those amounts and now seeks to recover them.

The case against the second defendant can be put to one side.

The case against the third defendant has two aspects. One is a claim that the third defendant, as the person in effect in control of the operations of the first defendant, caused the first defendant to submit the relevant certifications knowing them to be false or incorrect, or recklessly indifferent as to whether they were false or incorrect. That is said to amount to fraud, or misleading or deceptive conduct, on the part of the third defendant.

The other aspect of the claim against the third defendant seeks to make what might be called creative use of s1324(10) of the Corporations Act 2001 (Cth).

The plaintiff says, and this must be correct, that as a director of the first defendant, the third defendant…

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 Built NSW v Evolvebuilt Contracting

Details

AGLC: Built NSW v Evolvebuilt Contracting [2014] NSWSC 255
Case: [2014] NSWSC 255
Decision Date: 13 March 2014

CaseChat Overview and Summary

The case of Built NSW v Evolvebuilt Contracting was heard in the Supreme Court of New South Wales. The primary dispute between the parties centred around contractual obligations and the alleged breaches thereof, with the plaintiff, Built NSW, seeking damages for the defendant, Evolvebuilt Contracting, failing to meet certain construction standards. The defendant contested these claims and sought to have certain parts of the plaintiff's proceedings struck out, arguing they were not relevant to the main issues in dispute.

The legal issues before the court included whether it was appropriate to entertain a strike-out application under the relevant procedural rules and whether it was appropriate to strike out parts of the proceedings where the issues arose from the same factual matrix. The court was also tasked with determining whether striking out part of the proceedings would substantially reduce the burden of preparing for trial or the trial itself. The court needed to balance the principles of procedural fairness and efficiency against the need to address all relevant issues in the case.

The court held that it was appropriate to entertain the application to strike out part of the proceedings, despite the fact that the issues arose from the same factual matrix. The court found that the issues in question were collateral to the main dispute and that striking them out would significantly reduce the burden of preparing for trial and the trial itself. The court was satisfied that the remaining issues could be adequately addressed and that the defendant would not be prejudiced by the strike-out. Consequently, the court granted the application in part, striking out certain allegations that were deemed irrelevant to the primary dispute.

The final orders of the court included a direction for the plaintiff to amend its pleadings to exclude the struck-out allegations and a schedule for the remaining issues to proceed to trial. The court emphasised the importance of focusing on the substantive issues in dispute and avoiding unnecessary prolongation of the proceedings. The outcome of the case serves as a reminder to parties in litigation to carefully consider the relevance of their claims and to seek appropriate relief when necessary to streamline the legal process.

Orders