Civilworx Constructions Pty Ltd v Number1 Deanside Pty Ltd
[2025] VSC 101
•14 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST
S ECI 2025 00864
IN THE MATTER of an application by CIVILWORX CONSTRUCTIONS PTY LTD for judgment to be entered pursuant to s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic)
BETWEEN:
| CIVILWORX CONSTRUCTIONS PTY LTD (ACN 110 243 297) | Plaintiff |
| and | |
| NUMBER1 DEANSIDE PTY LTD (ACN 632 508 251) | Defendant |
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JUDGE: | Stynes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Decision made ‘on the papers’ having considered the ex parte application filed by the plaintiff |
DATE OF JUDGMENT: | 14 March 2025 |
CASE MAY BE CITED AS: | Civilworx Constructions Pty Ltd v Number1 Deanside Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2025] VSC 101 |
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BUILDING CONTRACTS – Construction dispute – Adjudication – Adjudication Certificate – Satisfaction of the requirements of ss 28Q and 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic) – Entry of judgment pursuant to s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic).
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The material filed by the plaintiff:
Originating Motion filed 20 February 2025.
Affidavit of Mr Gary Gardiner made 19 February 2025.
Adjudication Certificate provided by Adjudicate Today Pty Ltd under section 28Q of the Building and Construction Industry Security of Payment Act 2002 (Vic).
HER HONOUR:
A Introduction
The plaintiff, Civilworx Constructions Pty Ltd (‘Civilworx’), seeks judgment under s 28R of the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘SOP Act’) against Number1 Deanside Pty Ltd (‘Number1 Deanside’) in the sum of $545,556.10 together with interest to and from the date of this judgment.
In support of its application, Civilworx relies on:
(a)the affidavit of its director, Mr Gary Gardiner, filed on 20 February 2025 (‘Gardiner Affidavit’);
(b)the adjudication certificate provided by Adjudicate Today Pty Ltd (‘Adjudicate Today’) pursuant to s 28Q of the SOP Act (‘Adjudication Certificate’); and
(c)the short written submission of its solicitors.
Section 28R of the SOP Act provides in part as follows:
Proceedings to recover amounts payable under section 28M or 28N
(1)If an authorised nominating authority has provided an adjudication certificate to a person under section 28Q, the person may recover as a debt due to that person, in any court of competent jurisdiction, the unpaid portion of the amount payable under section 28M or 28N.
(2)A proceeding referred to in subsection (1) cannot be brought unless the person provided with the adjudication certificate files in the court—
(a) the adjudication certificate; and
(b)an affidavit by that person stating that the whole or any part of the amount payable under section 28M or 28N has not been paid at the time the certificate is filed.
(3)If the affidavit indicates that part of the amount payable under section 28M or 28N has been paid, judgment may be entered for the unpaid portion of that amount only.
(4)Judgment in favour of a person is not to be entered under this section unless the court is satisfied that the person liable to pay the amount payable under section 28M or 28N has failed to pay the whole or any part of that amount to that first-mentioned person.
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The Gardiner Affidavit and the Adjudication Certificate establishes the following:
(a)Civilworx and Number1 Deanside are parties to a contract dated 21 October 2021.
(b)Civilwork applied to Adjudicate Today (an ‘authorised nominating authority’ for the purpose of s 4 of the SOP Act) to adjudicate a payment dispute between it and Number1 Deanside pursuant to the SOP Act (‘Adjudication Application’).
(c)The Adjudication Application was assigned the reference number 2024ADJTVICA570 and Mr Daniel Fitzpatrick (‘Adjudicator’) was appointed as its adjudicator.
(d)On 17 January 2025, the Adjudicator issued a determination in respect of the Adjudication Application (‘Determination’).
(e)On 14 February 2025, Adjudicate Today issued an Adjudication Certificate in respect of the Determination pursuant to s 28Q of the SOP Act (‘Adjudication Certificate’). The Adjudication Certificate:
(i)names Civilworx as the claimant;
(ii)certifies that Number1 Deanside (as respondent) is liable to pay to Civilworx the sum of $545,556.10 (‘Adjudicated Amount’), comprising:
(1)the adjudicated amount determined by the adjudicator of $521,087.61 (including GST);
(2)the amount of interest due and payable on the adjudicated amount from 28 December 2024 to 14 February 2025 in the sum of $12,588.94; and
(3)the total fees paid by Civilworx on behalf of Number1 Deanside in the amount of $11,880.00.
(f)As at the date of the Gardiner Affidavit, Number1 Deanside has not paid to Civilworx, either in part or in full, the Adjudicated Amount.
B Conclusion and Orders
Civilworx has complied with the procedural requirements under s 28R(2) of the SOP Act in that it has filed with the Court:
(a)an Originating Motion in Form 5D;
(b)the Adjudication Certificate; and
(c)the Gardiner Affidavit stating that the whole or any part of the amount payable under the SOP Act has not been paid.
Further, I am satisfied that the Adjudication Certificate issued on 14 February 2025, together with the Gardiner Affidavit, establishes that Number1 Deanside:
(a)is liable to pay the Adjudicated Amount plus interest to Civilworx; and
(b)has failed to pay the whole or any part of that amount to Civilworx.
For the reasons above, I order that:
(a)There be judgment for Civilworx against Number1 Deanside under s 28R of the SOP Act, in the amount of $545,556.10.
(b)Number1 Deanside pay to Civilworx any interest that remains owing on the Adjudicated Amount from 15 February 2025 to the date of this judgment.
(c)Number1 Deanside pay Civilworx’s costs of this proceeding fixed in the amount of $9,460.00.
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