Ghafoor v Ryte Homes Pty Ltd - [2024] NSWSC 370

Supreme Court

New South Wales

Medium Neutral Citation: Ghafoor v Ryte Homes Pty Ltd [2024] NSWSC 370
Hearing dates: 2 April 2024
Decision date: 11 April 2024
Jurisdiction: Equity - Technology and Construction List
Before: Ball J
Decision:
(1)   Declare that the determination of the second defendant issued on 28 November 2023 in respect of Adjudication Application number ABCDRS NSW 561 in favour of the first defendant against the plaintiffs in the amount of $39,725 (the Determination) is void;
(2)   Order that the first defendant be permanently restrained from taking any steps to enforce the Determination;
(3)   Order that the first defendant pay the fees and costs charged by the second defendant in relation to the Determination;
(4)   Order that the amount of $44,149.34 which was paid into Court by the plaintiffs, together with any interest thereon, be paid to the plaintiffs;
(5)   Order that the first defendant pay the plaintiffs’ costs of the proceedings on an indemnity basis.

Catchwords:
BUILDING & CONSTRUCTION — Adjudication — Application to have adjudication determination made void — Whether parties had entered a ‘construction contract’ as defined in s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW)
CONTRACTS — Formation — Incompleteness — Executed contracts — Whether contract was signed and agreed to by all essential parties

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)

Cases Cited:
Crown Green Square Pty Ltd v Transport for NSW [2021] NSWSC 1557
Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685

Category: Principal judgment
Parties: Farhan Ghafoor (First Plaintiff)
Sadaf Akram (Second Plaintiff)
Mohammad Murtaza Hussain (Third Plaintiff)
Areej Aslam (Fourth Plaintiff)
Ryte Homes Pty Ltd (First Defendant)
Jonathan H Sive (Second Defendant)
Australian Building & Construction Dispute Resolution Service Pty Ltd (Third Defendant)
Representation:
Counsel:
F Anwar (Plaintiffs)
M Najem (Solicitor for First Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiffs)
St George Lawyers (First Defendant)
Submitting Appearance (Second and Third Defendants)

File Number(s): 2023/461090
Publication restriction: None

JUDGMENT

Introduction

The plaintiffs jointly own a property in Marsden Street, Carlingford NSW as tenants in common. They agreed to demolish the existing house on the property and to construct in its place two triple storey duplexes (the Project).
In these proceedings, the plaintiffs seek a declaration that an adjudication determination of the second defendant issued on 28 November 2023 in the amount of $39,725.00 (including GST) (the Determination) in respect of a payment claim served by the first defendant, Ryte Homes Pty Ltd (Ryte Homes), is void on the ground that the work was not undertaken under a “construction contract” within the meaning of s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The plaintiffs also seek a number of ancillary orders. In addition, they advance an alternative argument that the payment claim was not served on the plaintiffs because it was not served on all of them.

Background

In or…

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.

Continue reading Ghafoor v Ryte Homes Pty Ltd

Details

AGLC: Ghafoor v Ryte Homes Pty Ltd [2024] NSWSC 370
Case: [2024] NSWSC 370
Decision Date: 11 April 2024

CaseChat Overview and Summary

The case of Ghafoor v Ryte Homes Pty Ltd was before the NSW Supreme Court. The matter involved an application by the respondent, Ryte Homes Pty Ltd, to have an adjudication determination made void. The applicant, Ghafoor, sought payment under a building and construction contract, as defined in section 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW). The central dispute was whether the parties had entered into a valid construction contract and if it was signed and agreed to by all essential parties.

The court had to determine whether the parties had indeed entered into a construction contract under the Act and whether the contract was properly executed by all necessary parties. The key legal issue was whether the contract, which was the subject of the adjudication, was complete and binding on all parties involved. The court needed to examine the nature of the contract, the terms agreed upon, and whether all essential parties had signed and agreed to the terms.

The court found that the contract in question was not a valid construction contract as defined by the Act. The agreement did not include all the essential parties and was not signed by them, rendering it incomplete. Consequently, the adjudication determination was not valid because it was based on a contract that did not meet the statutory requirements. The court dismissed the application by Ryte Homes Pty Ltd to have the adjudication determination made void.

The court ordered that the adjudication determination remain in place, and Ghafoor was entitled to the payment as determined by the adjudicator. The court also made a declaration that the contract in question was not a valid construction contract under the Act, as it was not signed by all essential parties. This decision highlights the importance of ensuring that all necessary parties are involved and that the contract is properly executed to be enforceable under the Act.

Orders