Legal Research
Cases
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd

Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd

Link copied

Case Copied 3 March 2005 15 min read

Contents

On this page

Reported Decision:
62 NSWLR 385

Court of Appeal

CITATION:
Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):
3 March 2005

JUDGMENT DATE:

3 March 2005

JUDGMENT OF:
Handley JA at 1; Santow JA at 33; Pearlman AJA at 34

DECISION:
1. Leave to appeal granted subject to the notice of appeal being filed within 14 days if not already filed.; 2. Appeal allowed.; 3. The injunction granted by Naughton DCJ on 26 November 2004 is dissolved.; 4. The notice of motion of 12 November 2004 is dismissed with costs.; 5. The opponent is to pay the claimant's costs of the proceedings in this Court and is to have a certificate under the Suitors' Fund if qualified.

CATCHWORDS:
BUILDING AND ENGINEERING CONTRACTS - effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999 - BUILDING AND CONSTRUCTION INDUSTRY - Statutory remedies of builder - whether concurrent pursuit of statutory and common law remedies permissible - INJUNCTIONS - anti-suit - whether concurrent pursuit of statutory and common law remedies permissible under statute - whether vexatious or oppressive - D

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999

CASES CITED:
Toubia v Schwenke (2002) 54 NSWLR 46

PARTIES:
Falgat Constructions Pty Ltd (Claimant)
Equity Australia Corporation Pty Ltd (Opponent)

FILE NUMBER(S):
CA 41052/04

COUNSEL:
J J Graves SC/F Clark (Claimant)
G Sirtes (Opponent)

SOLICITORS:
Julie A Orsini (Claimant)
Stephen Wawn & Associates (Opponent)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1429/04

LOWER COURT JUDICIAL OFFICER:
Naughton DCJ

CA 41052/04

HANDLEY JA
SANTOW JA
PEARLMAN AJA
3 MARCH 2005

FALGAT CONSTRUCTIONS PTY LTD v EQUITY AUSTRALIA CORPORATION PTY LTD

CATCHWORDS

BUILDING AND ENGINEERING CONTRACTS – effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999

BUILDING AND CONSTRUCTION INDUSTRY – statutory remedies of builder – whether concurrent pursuit of statutory and common law remedies permissible

INJUNCTIONS – anti-suit – whether concurrent pursuit of statutory and common law remedies permissible under statute – whether vexatious or oppressive

FACTS

The builder sued the proprietor in the District Court for debt and damages under a contract for the construction of a residential building. The action was stayed pending provision of security of costs. The builder then commenced proceedings under the Building and Construction Industry Security of Payment Act 1999 (the Act). A District Court judge granted an anti-suit injunction under s 46 of the District Court Act restraining the builder from pursuing its remedies under the Act. The builder applied for leave to appeal. HELD: (1) Under the Act the statutory rights are only adjudicated on an interim basis and as such they supplement the rights of the parties under the general law. Consecutive proceedings under the Act and the general law are clearly permissible. In this case the concurrent statutory claim was not vexatious and…

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 Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd 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: [2005] NSWCA 49
Decision Date: 3 March 2005

CaseChat Overview and Summary

Falgat Constructions Pty Ltd (the claimant) sought to appeal an injunction granted by Naughton DCJ which restrained it from pursuing its rights under the *Building and Construction Industry Security of Payment Act 1999* (NSW) (the Act) while simultaneously pursuing common law remedies. Equity Australia Corp Pty Ltd (the opponent) had obtained the injunction on the basis that Falgat's concurrent pursuit of both statutory and common law claims was vexatious and oppressive.

The central legal issue before the Court of Appeal was whether the Act permitted a party to pursue both statutory remedies under the Act and common law remedies concurrently, and if so, whether such concurrent pursuit could be restrained by an anti-suit injunction on the grounds of being vexatious or oppressive. The court was required to consider the interplay between the statutory scheme designed to facilitate rapid payment in the building industry and the traditional common law rights available to parties under a contract.

The Court of Appeal held that the Act was designed to provide a swift and efficient mechanism for payment and did not preclude a claimant from pursuing common law remedies. The court reasoned that the statutory regime was intended to operate in parallel with, rather than in substitution for, existing common law rights. Therefore, the concurrent pursuit of both statutory and common law remedies was not inherently vexatious or oppressive. The injunction granted by the primary judge was dissolved, and the opponent's notice of motion was dismissed.

Orders

Orders of the court

1. Leave to appeal granted subject to the notice of appeal being filed within 14 days if not already filed.; 2. Appeal allowed.; 3. The injunction granted by Naughton DCJ on 26 November 2004 is dissolved.; 4. The notice of motion of 12 November 2004 is dismissed with costs.; 5. The opponent is to pay the claimant's costs of the proceedings in this Court and is to have a certificate under the Suitors' Fund if qualified.

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.

CITATION:	Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 March 2005
JUDGMENT DATE:	3 March 2005
JUDGMENT OF:	Handley JA at 1; Santow JA at 33; Pearlman AJA at 34
DECISION:	1. Leave to appeal granted subject to the notice of appeal being filed within 14 days if not already filed.; 2. Appeal allowed.; 3. The injunction granted by Naughton DCJ on 26 November 2004 is dissolved.; 4. The notice of motion of 12 November 2004 is dismissed with costs.; 5. The opponent is to pay the claimant's costs of the proceedings in this Court and is to have a certificate under the Suitors' Fund if qualified.

CATCHWORDS:	BUILDING AND ENGINEERING CONTRACTS - effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999 - BUILDING AND CONSTRUCTION INDUSTRY - Statutory remedies of builder - whether concurrent pursuit of statutory and common law remedies permissible - INJUNCTIONS - anti-suit - whether concurrent pursuit of statutory and common law remedies permissible under statute - whether vexatious or oppressive - D
LEGISLATION CITED:	Building and Construction Industry Security of Payment Act 1999
CASES CITED:	Toubia v Schwenke (2002) 54 NSWLR 46
PARTIES:	Falgat Constructions Pty Ltd (Claimant) Equity Australia Corporation Pty Ltd (Opponent)
FILE NUMBER(S):	CA 41052/04
COUNSEL:	J J Graves SC/F Clark (Claimant) G Sirtes (Opponent)
SOLICITORS:	Julie A Orsini (Claimant) Stephen Wawn & Associates (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1429/04
LOWER COURT JUDICIAL OFFICER:	Naughton DCJ