Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd

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.