Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd - [2009] NSWSC 938

CITATION: Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd [2009] NSWSC 938

HEARING DATE(S): 31 August 2009

JUDGMENT DATE :
10 September 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 44 of judgment.

CATCHWORDS: CONTRACTS - building, engineering and related contracts – plaintiff contends adjudication determination is void under s 7(2)(b) of Building and Construction Industry Security of Payment Act 1999 because contract was for the carrying out of residential building work – meaning of ‘resides in or proposes to reside in’ – consideration of plaintiff’s intention – plaintiff resided at the premises at all relevant times – purported adjudication determination is void

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (NSW)
Home Building Act 1989 (NSW)

CATEGORY: Principal judgment

CASES CITED: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
Levene v Inland Revenue Commissioners [1928] AC 217
Clarke v Clarke [1964] VR 773
Inland Revenue Commissioners v Lysaght [1928] AC 234
Re Vassis; ex parte Leung (1986) 9 FCR 518
Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
Corbett v Nguyen [2008] NSWSC 1265
Logue v Hansen Technologies Ltd [2003] FCA 81; (2003) 125 FCR 590
Hafza v D-G of Social Security (1985) 6 FCR 444
Macrae v Macrae [1949] P 397
Appah v Monseu [1967] 1 WLR 893
Acclaim Building Management Pty Ltd v Loewenthal [2006] NSWDC 29
Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134; (2008) 72 NSWLR 211
Taylor Projects Group Pty Ltd v Brick Dept. Pty Ltd (2005) NSWSC 571

TEXTS CITED: Macquarie Dictionary, rev 3rd ed (2003)
Minister’s Second Reading Speech on the Building and Construction Industry Security of Payment Bill (No. 2) (8 September 1999)

PARTIES: Adrian Cardiacos
v
Cooper Consulting & Construction Services (Aust) Pty Ltd & 1 Or

FILE NUMBER(S): SC 55047/09

COUNSEL: Plaintiff: N A Nicholls
Defendants: M Christie with L Shipway

SOLICITORS: Plaintiff: Slater & Gordon
Defendants: Doyles Construction Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

WHITE J

Thursday, 10 September 2009

55047/09 Adrian Cardiacos v Cooper Consulting & Construction Services (Aust) Pty Ltd & 1 Or

JUDGMENT

1 HIS HONOUR: The first defendant is a builder. It carried out residential building work on a house owned by the plaintiff in Cowra Place, Cronulla (“the Cronulla property”). On 25 March 2009 the first defendant made a payment claim on the plaintiff purportedly pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Act”). The plaintiff disputed that the Act applied, but in case that contention was wrong, served a payment schedule pursuant to s 14 of the Act. The plaintiff indicated that the amount of the payment he proposed to make was nil and gave reasons for that position. The first defendant made an…

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.

Keep reading for free

Create a free CaseChat account to read Cardiacos v Cooper Consulting and Constructions Services (Au... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWSC 938
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case involved a dispute between Cardiacos, the plaintiff, and Cooper Consulting and Constructions Services (Aust) Pty Ltd, the defendant. The plaintiff claimed that the adjudication determination made by the defendant was void because it was based on a contract for the carrying out of residential building work. The dispute was heard in the New South Wales Supreme Court. The plaintiff argued that the contract in question was for residential building work, and therefore, the adjudication determination was void under section 7(2)(b) of the Building and Construction Industry Security of Payment Act 1999.

The legal issues before the court were whether the contract in question was for residential building work and, if so, whether the adjudication determination was void under section 7(2)(b) of the Act. The court had to consider the meaning of the phrase ‘resides in or proposes to reside in’ and whether the plaintiff’s intention to reside at the premises at all relevant times was a relevant factor. The court also had to consider whether the voidness of the adjudication determination could be cured by the parties’ subsequent conduct.

The court found that the contract in question was for residential building work, as the plaintiff resided at the premises at all relevant times. The court held that the meaning of the phrase ‘resides in or proposes to reside in’ was not limited to the physical occupation of the premises but also included the intention to reside there. The court also found that the voidness of the adjudication determination could not be cured by the parties’ subsequent conduct. The court therefore held that the adjudication determination was void and of no effect. The court did not consider it necessary to make any orders as the adjudication determination had already been set aside by a prior order of the court.

In summary, the court held that the adjudication determination was void because it was based on a contract for residential building work, and the plaintiff resided at the premises at all relevant times. The court also held that the voidness of the adjudication determination could not be cured by the parties’ subsequent conduct. The court did not make any further orders as the adjudication determination had already been set aside.

Orders