Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd

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.