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Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd

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Case Copied 23 March 2017 72 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53
Hearing dates: 3 March 2017
Decision date: 23 March 2017
Before: Beazley ACJ at [1];
Basten JA at [4];
Leeming JA at [88]
Decision:
(1)   Grant the applicant leave to appeal from the judgment in the Equity Division refusing relief on the notice of motion filed in the Division on 6 February 2017.

(2)   Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal contained in the white folder.

(3)   Dismiss the appeal.
(4)   Order that the applicant pay the respondent’s costs in this Court.
Catchwords:
BUILDING AND CONSTRUCTION – where builder filed payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where resulting adjudication determination filed as judgment debt – whether requirement to notify affected party of judgment debt before commencing proceedings to enforce it – whether s 25(4) creates right to such notice
BUILDING AND CONSTRUCTION – ex parte garnishee order obtained – whether duty of candour to inform court that affected party had commenced proceedings challenging validity of underlying adjudication determination under Supreme Court Act 1970 (NSW), s 69
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 19, 20, 22, 23, 24, 25, 32; Pt 3
Common Law Procedure Act 1854 (17 & 18 Vict c 125), ss 60-67
Common Law Procedure Act 1857 (20 Vic No 31), ss 27-33
Civil Procedure Act 2005 (NSW), ss 9, 106, 117, 118, 124, 133, 134, 135; Pt 8, Div 3
General Rules of Court 1952 (NSW), Order XIX
Interpretation Act 1987 (NSW), s 33
Legal Profession Uniform Law Application Act 2014 (NSW), ss 86, 90
Supreme Court Act 1970 (NSW), ss 69, 75
Supreme Court Rules 1970 (NSW), Pt 46
Uniform Civil Procedure Rules 2005 (NSW), rr 36.14, 36.15, 36.16, 39.34, 39.35, 39.38, 39.39; Pt 39, Div 4
Cases Cited: Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; 90 ALJR 370
Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350
Bruton Holdings Pty Limited (in liq) v Commissioner of Taxation (2009) 239 CLR 346; [2009] HCA 32
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49
Garrard (T/as Arthur Andersen & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662
House v The King (1936) 55 CLR 499
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
J Aron Corporation v Newmont Yandal Operations Pty Ltd [2004] NSWSC 533; 183 FLR 90
ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859
Parisienne Basket Shoes Pty…

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: [2017] NSWCA 53
Decision Date: 23 March 2017

CaseChat Overview and Summary

Fitz Jersey Pty Ltd (the applicant) sought to appeal a decision of the Equity Division that refused relief concerning a payment claim made by Atlas Construction Group Pty Ltd (the respondent) under the *Building and Construction Industry Security of Payment Act 1999* (NSW). The dispute arose from the respondent filing an adjudication determination as a judgment debt.

The primary legal issues before the Court of Appeal were whether the respondent was required to notify the applicant of the judgment debt before commencing proceedings to enforce it, and whether section 25(4) of the *Security of Payment Act* created a right to such notice. Additionally, the Court considered whether the respondent had a duty of candour to inform the court that the applicant had commenced proceedings challenging the validity of the underlying adjudication determination when obtaining an *ex parte* garnishee order.

The Court of Appeal determined that section 25(4) of the *Security of Payment Act* does not create a right to notification before enforcement proceedings are commenced. Furthermore, the Court found that while there is a duty of candour when obtaining *ex parte* orders, the failure to disclose the separate proceedings challenging the adjudication determination did not, in this instance, warrant setting aside the garnishee order. The Court concluded that the applicant had not demonstrated a sufficient basis to interfere with the primary judge's decision.

Consequently, the Court granted the applicant leave to appeal but ultimately dismissed the appeal, ordering the applicant to pay the respondent's costs.

Orders

Orders of the court

(1) Grant the applicant leave to appeal from the judgment in the Equity Division refusing relief on the notice of motion filed in the Division on 6 February 2017.

(2) Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal contained in the white folder.

(3) Dismiss the appeal.

(4) Order that the applicant pay the respondent’s costs in this Court.

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:	Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53
Hearing dates:	3 March 2017
Decision date:	23 March 2017
Before:	Beazley ACJ at [1]; Basten JA at [4]; Leeming JA at [88]
Decision:	(1) Grant the applicant leave to appeal from the judgment in the Equity Division refusing relief on the notice of motion filed in the Division on 6 February 2017. (2) Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal contained in the white folder. (3) Dismiss the appeal. (4) Order that the applicant pay the respondent’s costs in this Court.
Catchwords:	BUILDING AND CONSTRUCTION – where builder filed payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – where resulting adjudication determination filed as judgment debt – whether requirement to notify affected party of judgment debt before commencing proceedings to enforce it – whether s 25(4) creates right to such notice BUILDING AND CONSTRUCTION – ex parte garnishee order obtained – whether duty of candour to inform court that affected party had commenced proceedings challenging validity of underlying adjudication determination under Supreme Court Act 1970 (NSW), s 69
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 19, 20, 22, 23, 24, 25, 32; Pt 3 Common Law Procedure Act 1854 (17 & 18 Vict c 125), ss 60-67 Common Law Procedure Act 1857 (20 Vic No 31), ss 27-33 Civil Procedure Act 2005 (NSW), ss 9, 106, 117, 118, 124, 133, 134, 135; Pt 8, Div 3 General Rules of Court 1952 (NSW), Order XIX Interpretation Act 1987 (NSW), s 33 Legal Profession Uniform Law Application Act 2014 (NSW), ss 86, 90 Supreme Court Act 1970 (NSW), ss 69, 75 Supreme Court Rules 1970 (NSW), Pt 46 Uniform Civil Procedure Rules 2005 (NSW), rr 36.14, 36.15, 36.16, 39.34, 39.35, 39.38, 39.39; Pt 39, Div 4
Cases Cited:	Aristocrat Technologies Australia Pty Ltd v Allam [2016] HCA 3; 90 ALJR 370 Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 Bruton Holdings Pty Limited (in liq) v Commissioner of Taxation (2009) 239 CLR 346; [2009] HCA 32 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 Garrard (T/as Arthur Andersen & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 House v The King (1936) 55 CLR 499 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49 J Aron Corporation v Newmont Yandal Operations Pty Ltd [2004] NSWSC 533; 183 FLR 90 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577; [2007] NSWSC 859 Parisienne Basket Shoes Pty…