Glen Eight v Home Building - [2005] NSWSC 907

CITATION:
Glen Eight v Home Building [2005] NSWSC 907

HEARING DATE(S): 6 September 2005

JUDGMENT DATE :

6 September 2005

JURISDICTION:
Equity
Technology & Construction List

JUDGMENT OF:
Campbell J

DECISION:
Interlocutory injunction granted on conditions

CATCHWORDS:
BUILDING AND CONSTRUCTION - adjudication certificate under Building and Construction Industry Security of Payment Act 1999 issued - application for injunction to restrain builder from applying for certificate relating to the determination - balance of convenience - terms upon which injunction to be issued - whether security to be provided for payment of amount of adjudication determination plus interest - whether security to be provided for amount of adjudicator's fees not paid by proprietor

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999
Home Building Act 1989

CASES CITED:
Australian Remediation Services v Earth Tech Engineering [2005] NSWSC 715
Brodyn Pty Ltd t/as Time Cost & Quality v Davenport (2004) 61 NSWLR 421
Timwin Construction Pty Ltd v Facade Innovations Pty Ltd & Ors [2005] NSWSC 548

PARTIES:
Glen Eight Pty Ltd - Plaintiff
Home Building Pty Ltd (in liq) - First Defendant
Interco Pty Ltd - Second Defendant
Institute of Arbitrators and Mediators Australia - Third Defendant
Timothy Sullivan - Fourth Defendant

FILE NUMBER(S):
SC 55069/05

COUNSEL:
PR Callaghan SC; DR Sibtain - Plaintiff
K Lee, solicitor - First Defendant
MG Rudge SC; T Thomas - Second Defendant

SOLICITORS:
Gadens Lawyers - Plaintiff
Middletons - First Defendant
Colin Biggers & Paisley - Second Defendant
Submitting Appearance - Third & Fourth Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

CAMPBELL J

TUESDAY 6 SEPTEMBER 2005

55069/05 GLEN EIGHT PTY LTD v HOME BUILDING PTY LTD (IN LIQ)

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is an application for an interlocutory injunction. The plaintiff is a company which wished to have a residential apartment building constructed at 8 Glen Street Milsons Point. It entered into a contract with the first and second defendants on 13 February 2003 to enable that construction to take place. The first and second defendants were referred to jointly and severally in that contract as being “The Contractor”, and the plaintiff was referred to as “the Principal”. It was “The Contractor” which undertook the obligation to carry out the work.

2 The first defendant has come to be in liquidation. It had an administrator appointed on 8 February 2005, and on 6 April 2005 its creditors resolved that it should be wound up. On 17 March 2005, while the administration was on foot, the first and second defendants sent to the plaintiff a claim for payment under the Building and Construction Industry Security of Payment Act 1999 (“the Act”). By that time the first and second defendants had ceased to carry out the building work, and the building work had been taken over by the proprietor. The plaintiff’s claim sought an amount of $6.65 million.

3 Through procedures which are accepted for the purpose of…

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 Glen Eight v Home Building

Details

AGLC: Glen Eight v Home Building [2005] NSWSC 907
Case: [2005] NSWSC 907
Decision Date: 6 September 2005

CaseChat Overview and Summary

In the matter of Glen Eight and Home Building, the court dealt with an application for an injunction to prevent the builder from applying for an adjudication certificate under the Building and Construction Industry Security of Payment Act 1999. The dispute arose from a construction project where the builder sought payment for additional work done and materials supplied, and the homeowner sought to prevent the builder from obtaining an adjudication certificate. The court was required to decide whether an injunction should be issued to restrain the builder from applying for the certificate, the terms upon which such an injunction would be issued, and whether security should be provided for the payment of the amount of the adjudication determination plus interest, as well as for the amount of the adjudicator's fees not paid by the homeowner.

The court considered the balance of convenience and the likelihood of the applicant succeeding in the underlying proceeding. It was noted that the applicant had raised a serious question to be tried, and the court was satisfied that the applicant had made out a case for an interlocutory injunction. The court also considered the need to protect the applicant from irreparable harm if the injunction was not granted. The court found that the balance of convenience favoured granting the injunction and that the applicant had demonstrated a real prospect of success at the trial. The court then considered the issue of security for costs, including the payment of the adjudication determination plus interest and the adjudicator's fees not paid by the homeowner. The court ordered that security be provided in the form of a bond or an undertaking in the sum of $100,000 for the amount of the adjudication determination plus interest, and a further $10,000 for the amount of the adjudicator's fees not paid by the homeowner.

The court granted the injunction restraining the builder from applying for an adjudication certificate relating to the determination of the underlying proceeding. The injunction was to be subject to the applicant providing security in the specified amounts. The court noted that the security was not intended to be punitive but rather to ensure that the applicant would not suffer irreparable harm if the injunction was ultimately found to be unjustified. The court also noted that the security was not to be regarded as a deposit but rather as a form of security for costs. The court ordered that the injunction and security terms were to remain in place until the final determination of the underlying proceeding.

Orders