CC No 1 v Reed - [2010] NSWSC 294

CITATION: CC No 1 v Reed [2010] NSWSC 294

HEARING DATE(S): 16/04/10

JUDGMENT DATE :
6 May 2010

JURISDICTION: Equity Divison

JUDGMENT OF: Macready AsJ at 1

DECISION: I dismiss the proceedings with costs and dissolve the existing interlocutory injunction.

CATCHWORDS: Contracts. Building, engineering and related contracts. Progress claims under the Building and Construction Industry Security of Payment Act 1999 - Claim that later claim was an abuse as it reagitated matters the subject of earlier claims. - No adjudication of earlier claims. - Held in the circumstances no abuse. - Proceedings dismissed.

PARTIES: CC No 1 Pty Ltd & Anor v Reed Constructions Australia Pty Ltd & Anor

FILE NUMBER(S): SC 2010/81752

COUNSEL: Mr G Inatey SC with Mr D Miller for plaintiff
Mr B Coles QC with Mr B DeBuse for defendant

SOLICITORS: Minter Ellison Lawyers for plaintiff
HWL Ebsworth Lawyers for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

IN THE SUPREME COURT OF
NEW SOUTH WALE
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

ASSOCIATE JUSTICE MACREADY

Thursday 6 May 2010

2010 / 81752 CC No 1 Pty Ltd & Anor v Reed Constructions Pty Ltd

1 HIS HONOUR: This is the final hearing of the plaintiffs’ suit to restrain the adjudication process initiated by the first defendant’s adjudication application dated 29 March 2010 concerning the first defendant’s payment claim dated 1 March 2010. The second defendant is the appointed adjudicator. At present there are injunctions in place to restrain the second defendant from delivering his determination until 5pm on 30 April 2010. A judge of the Court has referred the matter to me for hearing.

Background

2 The claims concern construction works being undertaken by the first defendant, as contractor, for the plaintiffs, as principal, at the Chatswood Chase retail redevelopment in Sydney pursuant to a contract dated 24 January 2008. The contract was in the form of AS4300.

3 The contract progressed with progress claims numbers 1 to 20 being dealt with under the contractual arrangements between the parties. These claims were made between 24 January 2008 and 28 August 2009. None of these progress claims were submitted as payment claims under the Building and Construction Industry Security of Payment Act 1999 (“the Act”).

4 On 28 September 2009 payment claim 21 for the period the ‘week ending 28th September 2009’ which was submitted under the Act was given to the plaintiff. A payment schedule was submitted out-of-time on 20 October 2009. The payment schedule suggested that the amount payable should be $1,957.954. The actual amount claimed in the September payment claim was $3,664,670.55. On 20 October 2009 the plaintiff paid the amount of $1,957,954 after the defendant raised an invoice for that amount.

5 On 13 November 2009 a further payment claim was submitted. This is described in the evidence as the October payment claim and was for an amount $5,126,297.59. On 27 November 2009 a payment schedule was served within time in respect of the October 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 CC No 1 v Reed

Details

AGLC: CC No 1 v Reed [2010] NSWSC 294
Case: [2010] NSWSC 294
Decision Date: 6 May 2010

CaseChat Overview and Summary

The matter before the court involved a dispute between CC No 1 and Reed, concerning progress claims under the Building and Construction Industry Security of Payment Act 1999. The core issue was whether a later claim by CC No 1 was an abuse of process as it revisited matters already the subject of earlier claims. The Federal Circuit Court was tasked with determining the validity of the later claim and whether it was an abuse of process.

The court was required to decide if the later claim was an abuse of process, given that the earlier claims had not been adjudicated. The key legal issues centred around the interpretation of the act and the principles of fairness and efficiency in the construction industry's payment processes. Specifically, the court had to consider whether the re-litigation of already considered issues in the later claim constituted an abuse of process.

The court found that, in the absence of adjudication on the earlier claims, there was no abuse of process in the later claim. The court reasoned that the act does not preclude a party from making a further claim if the earlier claims have not been adjudicated. Additionally, the court highlighted the importance of ensuring that the construction industry's payment processes are fair and efficient. The court concluded that the later claim was not an abuse of process under the circumstances. Consequently, the proceedings were dismissed.

This decision underscores the importance of proper adjudication of earlier claims to prevent potential abuse of process in subsequent claims. It also reaffirms the need for clear and efficient processes within the building and construction industry to avoid unnecessary litigation.

Orders