Costi Cohen Pty Ltd v Bo - [2025] NSWDC 176

District Court

New South Wales

Medium Neutral Citation: Costi Cohen Pty Ltd v Bo [2025] NSWDC 176
Hearing dates: 5 May 2025
Date of orders: 5 May 2025
Decision date: 05 May 2025
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision:
Grant leave to the Defendant to file an Amended Defence [13]

Catchwords:
PRACTICE AND PROCEDURE – Pleadings – Cross-claim – Is it necessary to seek by way of cross-claim relief claimed under remedial legislation or is it sufficient to plead such relief in a Defence – Are the cases that hold no requirement of a cross-claim limited to proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), which precludes the filing of a cross-claim

Legislation Cited:
Contracts Review Act 1980 (NSW)
Competition and Consumer Act 2010 (Cth) -Schedule 2
Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:
Britannia Pty Ltd v Parkline Constructions Ltd (2006) 67 NSWLR 9
Stallion Civil Group Pty Ltd v Tresedar Pty Ltd [2009] NSWDC 125

Category: Principal judgment
Parties: Costi Cohen Pty Ltd (Plaintiff)
Yin Bo (Defendant)
Representation:
Counsel:
P Folino Gallo (Plaintiff)
P Reynolds (Defendant)
Solicitors:
Hitch Advisory Pty Ltd (Plaintiff)
MLH Lawyers Pty Ltd (Defendant)

File Number(s): 2024/356522
Publication restriction: Nil

JUDGMENT; ex tempore (revised)

This is an application by the Defendant to file an amended defence to the Plaintiff's claim.
Mr Folino Gallo of counsel, who has appeared for the Plaintiff, opposes the amendments on two very narrow grounds.
The first is that he submits, as a matter of either law, the Court rules, or proper practice and procedure, those portions of the amended defence which pray in aid various protective provisions found in misleading or deceptive conducts provisions of the Australian Consumer Law ("ACL"), the unconscionable conduct provisions of the ACL and the unfair contract provisions of the Contracts Review Act 1980 (NSW), all require a party seeking such relief in a defensive way to not only plead the matter in a defence (or perhaps to not plead the matters in a defence at all), but rather to plead them in a cross-claim and to claim relief in the cross-claim. The fundamental point being, at least relief must be claimed by way of cross-claim.
The second point is a drafting matter which turns on a submission that in various paragraphs following [45] of the proposed defence, there is a reference to paragraph [3] of the amended defence, which paragraph asserts there is no binding contract. If that is correct, it would mean that none of the paragraphs following [45] would have any work to do because each of them proceeds upon the premise that there has been found, contrary to the Defendant's primary position, to be a contract.
Dealing with the first point first, I have been taken to two decisions, being Britannia Pty Ltd v Parkline Constructions Ltd (2006) 67 NSWLR 9, and in particular to what Hodgson JA said, at paragraphs [7] to [11], which observations…

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: [2025] NSWDC 176
Decision Date: 05 May 2025

CaseChat Overview and Summary

In the matter of Costi Cohen Pty Ltd versus Bo, the dispute arose from a building contract and involved the interpretation and application of the Building and Construction Industry Security of Payment Act 1999 (NSW). The defendant, Bo, sought to amend their Defence to include a cross-claim for relief under the Act, arguing that it was not necessary to file a separate cross-claim and that pleading the relief in the Defence was sufficient. The court had to determine whether the requirement to file a cross-claim under the Act was mandatory or if it could be satisfied by including the relief in a Defence.

The primary legal issue before the court was whether the cases that held no requirement of a cross-claim were limited to proceedings under the Act, which precluded the filing of a cross-claim. The court considered the statutory language and legislative intent behind the Act, as well as the established case law on the matter. The court found that the requirement to file a cross-claim was not absolute and that it could be satisfied by pleading the relief in the Defence, provided that the substantive claims and relief were properly pleaded and within the jurisdictional limits of the court.

The court held that the defendant was entitled to amend their Defence to include the relief claimed under the Act. The court reasoned that the purpose of the Act was to provide a quick and fair resolution of payment disputes in the building and construction industry, and that requiring a separate cross-claim would unnecessarily delay the process. The court further held that the cases that held no requirement of a cross-claim were not limited to proceedings under the Act but applied to any situation where the substantive claims and relief were properly pleaded in the Defence. The court granted leave to the defendant to file an Amended Defence, which included the relief claimed under the Act.

The court's decision clarifies the requirements for pleading relief under the Act and provides guidance for parties involved in building and construction disputes. The decision also highlights the importance of properly pleading substantive claims and relief in Defences, and the need for courts to balance the procedural requirements of the Act with its underlying purpose of providing a quick and fair resolution of payment disputes.

Orders

Orders of the court

Grant leave to the Defendant to file an Amended Defence [13]

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.

Medium Neutral Citation:	Costi Cohen Pty Ltd v Bo [2025] NSWDC 176
Hearing dates:	5 May 2025
Date of orders:	5 May 2025
Decision date:	05 May 2025
Jurisdiction:	Civil
Before:	Newlinds SC DCJ
Decision:	Grant leave to the Defendant to file an Amended Defence [13]
Catchwords:	PRACTICE AND PROCEDURE – Pleadings – Cross-claim – Is it necessary to seek by way of cross-claim relief claimed under remedial legislation or is it sufficient to plead such relief in a Defence – Are the cases that hold no requirement of a cross-claim limited to proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), which precludes the filing of a cross-claim
Legislation Cited:	Contracts Review Act 1980 (NSW) Competition and Consumer Act 2010 (Cth) -Schedule 2 Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited:	Britannia Pty Ltd v Parkline Constructions Ltd (2006) 67 NSWLR 9 Stallion Civil Group Pty Ltd v Tresedar Pty Ltd [2009] NSWDC 125
Category:	Principal judgment
Parties:	Costi Cohen Pty Ltd (Plaintiff) Yin Bo (Defendant)
Representation:	Counsel: P Folino Gallo (Plaintiff) P Reynolds (Defendant) Solicitors: Hitch Advisory Pty Ltd (Plaintiff) MLH Lawyers Pty Ltd (Defendant)
File Number(s):	2024/356522
Publication restriction:	Nil