Duynstee v Dickens & Dickens - [2009] NSWSC 292

CITATION: Duynstee v Dickens & Dickens [2009] NSWSC 292
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 April 2009

JUDGMENT DATE :
24 April 2009

JURISDICTION: Common Law

JUDGMENT OF: RA Hulme J

DECISION: The appeal is dismissed. The plaintiff is to pay the defendant's costs of the appeal as agreed or as assessed.

CATCHWORDS: CONTRACTS - contract for fire protection of boundary fence - whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999 - MAGISTRATES - appeals and review - appeals limited to question of law - points not taken below

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Home Building Act 1989
Local Courts Act 1982
Uniform Civil Procedure Rules

CATEGORY: Principal judgment

CASES CITED: Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187
Nichols v Lee [2008] NSWSC 1243
US Manufacturing Co Pty Limited v ABB Service Pty Limited [2008] NSWSC 705
David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164
Walter Construction Group v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Kuru v State of New South Wales [2008] HCA 26
State of New South Wales v Kuru [2007] NSWCA 141

TEXTS CITED: Ritchie, Uniform Civil Procedure NSW, LexisNexis Butterworths, 2006

PARTIES: Antonius Duynstee (Plaintiff)
Neil Dickens & Roma Dickens trading as NRJ Irrigation Systems (Defendants)

FILE NUMBER(S): SC 14138/08

COUNSEL: Mr S Brennan for the Plaintiff
Mr L Gor for the Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 35/2007

LOWER COURT JUDICIAL OFFICER : Andrews LCM

LOWER COURT DATE OF DECISION: 14 July 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

RA Hulme J

24 April 2009

14138/08 Duynstee v Dickens & Dickens
JUDGMENT

Outline of proceedings

1 HIS HONOUR: This is an appeal in respect of a judgment given in the Local Court concerned with questions relating to the Building and Construction Industry Security of Payments Act 1999 (BCISP Act) and the Home Building Act 1989 (HB Act).

2 Before engaging in the detail of the matter it is useful to say something about the BCISP Act. Bell JA provided the following in Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134:

36 The objects of the Security of Payments Act are set out in s 3:

“(1) The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services.

(2) The means by which this Act ensures that a person is entitled to receive a progress payment is by…

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 Duynstee v Dickens & Dickens

Details

AGLC: Duynstee v Dickens & Dickens [2009] NSWSC 292
Case: [2009] NSWSC 292
Decision Date: 24 April 2009

CaseChat Overview and Summary

Duynstee engaged Dickens & Dickens to install a fire protection system around a boundary fence. A dispute arose regarding payment, and Duynstee brought an application under the Building and Construction Industry Security of Payment Act 1999. Dickens & Dickens contended that the contract was excluded from the operation of the Act under section 7(2)(b). The matter was initially heard in the Magistrates Court, where the Magistrate found that the contract was not excluded and ordered Dickens & Dickens to pay Duynstee.

The legal issues before the court were whether the contract for the fire protection system was excluded from the operation of the Act under section 7(2)(b). Section 7(2)(b) of the Act excludes from its operation any contract for the construction of a residential building, defined as a building with no more than four residential units, where the contract was entered into before 1 December 2005. The court needed to determine whether the contract for the fire protection system was a contract for the construction of a residential building and whether it was entered into before 1 December 2005.

The court held that the contract for the fire protection system was not excluded from the operation of the Act under section 7(2)(b). The court found that the contract was not for the construction of a residential building, as it was specifically for the installation of a fire protection system around a boundary fence. The court also held that the contract was not entered into before 1 December 2005, as the fire protection system was installed after this date. The court therefore found that the contract was not excluded from the operation of the Act and ordered Dickens & Dickens to pay Duynstee.

The final orders of the court were that the application brought by Duynstee under the Building and Construction Industry Security of Payment Act 1999 was successful, and that Dickens & Dickens were ordered to pay Duynstee the sum of $15,000, being the amount claimed. The court also ordered that Dickens & Dickens pay Duynstee's costs of the application.

Orders