Fu Xing Pty Ltd v Sidway Constructions Pty Ltd - [2017] NSWDC 17

District Court

New South Wales

Medium Neutral Citation: Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17
Hearing dates: 7 February 2017
Date of orders: 07 February 2017
Decision date: 16 February 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff’s notice of motion for summary judgment under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) and s 15(2)(a)(i) Building and Construction Industry Security of Payment Act 1999 (NSW) for the sum of $598,083.80 is dismissed.
(2) The costs of the motion are reserved to the trial judge.
(3) Defendant’s Defence in 14 days (21 February 2017).
(4) Plaintiff to file any further affidavits/evidence in these proceedings 28 days thereafter (21 March 2017).
(5) Defendant’s affidavits/evidence in reply 6 weeks thereafter (2 May 2017).
(6) Plaintiff’s affidavits/evidence in reply 2 weeks thereafter (16 May 2017).
(7) Note the parties have been encouraged to consider mediation.
(8) The exhibits from the summary judgment application are to remain with the file (as costs have been reserved).
(9) Parties are referred to the List Judge for allocation of a hearing date (estimate 3 day matter), such hearing date to occur after 16 May 2017.

Catchwords: BUILDING AND CONSTRUCTION – application for summary judgment – defendant serves notice on plaintiff terminating contract – disputed issue of fact as to whether contract terminated on that date or after service of the payment claim the subject of the summary judgment application – whether document served is in fact a payment claim – application for summary judgment dismissed – no issue of principle
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13, 14 and 15
Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited: Hill (as Trustee for Ashmore Superannuation Benefit Fund) v Halo Architectural Design Services Pty Ltd [2013] NSWSC 865
Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52
Category: Procedural and other rulings
Parties: Plaintiff: Fu Xing Pty Ltd
Defendant: Sidway Constructions Pty Ltd
Representation:
Counsel:
Plaintiff: Mr R Green (solicitor)
Defendant: Mr N Kidd SC
Solicitors:
Plaintiff: Richard Green Construction Lawyers
Defendant: Bradbury Legal

File Number(s): 2016/367208
Publication restriction: None

Judgment

The plaintiff by notice of motion filed on 7 December 2016 seeks orders as follows:

Judgment be entered in favour of the plaintiff pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) in the sum of $598,083.80 pursuant to section 15(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“BCISOPA”) or such further or other amount as the court considers fit; or

Verdict and judgment on a final basis be granted in favour of the plaintiff pursuant to section 15(2)(a)(i) of the BCISOPA (in the sum of $598,083.80 or such further or other amount as the court considers fit); and

The defendant pay the plaintiff interest on the sum of $598,083.80 at the rate prescribed under section 101 of the Civil Procedure Act 2005 (NSW)…

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] NSWDC 17
Decision Date: 16 February 2017

CaseChat Overview and Summary

Fu Xing Pty Ltd brought an application for summary judgment against Sidway Constructions Pty Ltd for the sum of $598,083.80 under the Building and Construction Industry Security of Payment Act 1999 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). The application arose from a dispute over the termination of a building contract and the payment of a sum claimed by the plaintiff. The defendant had previously served a notice terminating the contract, but the plaintiff argued that the contract had not actually terminated until after the payment claim was served. The court was required to determine whether the document served by the defendant was a payment claim and if there were any genuine issues of fact that needed to be resolved before the application could proceed.

The court examined the nature of the document served by the defendant and whether it complied with the requirements of a payment claim under the Security of Payment Act. The court also assessed whether there were any disputed facts that could impact the enforceability of the payment claim and the validity of the termination of the contract. The defendant argued that the document was not a payment claim but rather a notice of termination, which meant that the plaintiff's application for summary judgment was not valid. The court found that there were genuine issues of fact that needed to be resolved, and therefore dismissed the plaintiff's application for summary judgment.

The court held that the document served by the defendant was not a payment claim as required by the Security of Payment Act, and that there were genuine issues of fact that needed to be resolved before the application could proceed. The court found that the plaintiff had not established that there were no real prospects of the defendant succeeding in its defence, and that there were no other compelling reasons why the matter should be determined at a trial. The court dismissed the plaintiff's application for summary judgment and reserved the costs of the motion to the trial judge. The parties were directed to provide further evidence and the court encouraged the parties to consider mediation. The hearing was allocated to occur after 16 May 2017.

Orders

Orders of the court

(1) The plaintiff’s notice of motion for summary judgment under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) and s 15(2)(a)(i) Building and Construction Industry Security of Payment Act 1999 (NSW) for the sum of $598,083.80 is dismissed.

(2) The costs of the motion are reserved to the trial judge.

(3) Defendant’s Defence in 14 days (21 February 2017).

(4) Plaintiff to file any further affidavits/evidence in these proceedings 28 days thereafter (21 March 2017).

(5) Defendant’s affidavits/evidence in reply 6 weeks thereafter (2 May 2017).

(6) Plaintiff’s affidavits/evidence in reply 2 weeks thereafter (16 May 2017).

(7) Note the parties have been encouraged to consider mediation.

(8) The exhibits from the summary judgment application are to remain with the file (as costs have been reserved).

(9) Parties are referred to the List Judge for allocation of a hearing date (estimate 3 day matter), such hearing date to occur after 16 May 2017.

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:	Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17
Hearing dates:	7 February 2017
Date of orders:	07 February 2017
Decision date:	16 February 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff’s notice of motion for summary judgment under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) and s 15(2)(a)(i) Building and Construction Industry Security of Payment Act 1999 (NSW) for the sum of $598,083.80 is dismissed. (2) The costs of the motion are reserved to the trial judge. (3) Defendant’s Defence in 14 days (21 February 2017). (4) Plaintiff to file any further affidavits/evidence in these proceedings 28 days thereafter (21 March 2017). (5) Defendant’s affidavits/evidence in reply 6 weeks thereafter (2 May 2017). (6) Plaintiff’s affidavits/evidence in reply 2 weeks thereafter (16 May 2017). (7) Note the parties have been encouraged to consider mediation. (8) The exhibits from the summary judgment application are to remain with the file (as costs have been reserved). (9) Parties are referred to the List Judge for allocation of a hearing date (estimate 3 day matter), such hearing date to occur after 16 May 2017.
Catchwords:	BUILDING AND CONSTRUCTION – application for summary judgment – defendant serves notice on plaintiff terminating contract – disputed issue of fact as to whether contract terminated on that date or after service of the payment claim the subject of the summary judgment application – whether document served is in fact a payment claim – application for summary judgment dismissed – no issue of principle
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13, 14 and 15 Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Cases Cited:	Hill (as Trustee for Ashmore Superannuation Benefit Fund) v Halo Architectural Design Services Pty Ltd [2013] NSWSC 865 Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52
Category:	Procedural and other rulings
Parties:	Plaintiff: Fu Xing Pty Ltd Defendant: Sidway Constructions Pty Ltd
Representation:	Counsel: Plaintiff: Mr R Green (solicitor) Defendant: Mr N Kidd SC Solicitors: Plaintiff: Richard Green Construction Lawyers Defendant: Bradbury Legal
File Number(s):	2016/367208
Publication restriction:	None