Go Electrical Pty Ltd v Class Electrical Services Pty Ltd - [2013] NSWSC 517

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Go Electrical Pty Limited v Class Electrical Services Pty Limited [2013] NSWSC 517
Hearing dates: 30 April 2013
Decision date: 30 April 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: Hammerschlag J
Decision:
Plaintiff forthwith repay to the defendant the sum of $39,166.19 which includes interest to the date of judgment

Catchwords: PRACTICE AND PROCEDURE - where monies recovered by a party under a judgment based on an adjudication determination - where adjudication determination is quashed and judgment set aside - right of the party from whom the monies were recovered to return of the monies - whether the Court has a discretion to not order repayment
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
Civil Procedure Act 2005 (NSW)
Cases Cited: Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659
TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSWLR 381
John Holland Pty Ltd v Roads and Traffic Authority of NSW (2006) 66 NSWLR 624
Proprietors of Strata Plan No 5399 v Feehan (1996) 9 BPR 97703
Category: Principal judgment
Parties: Go Electrical Pty Limited - Plaintiff
Class Electrical Services Pty Limited - Defendant
Representation: Counsel:
D.R. Pritchard SC with F.F.F. Salama - Plaintiff
B. DeBuse - Defendant
Solicitors:
Marsdens Law Group - Plaintiff
HWL Ebsworth - Defendant

File Number(s): 2013/64042

EX TEMPORE Judgment

These proceedings

On 19 February 2013 an adjudicator, Mr Davenport, purporting to act under the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW), made an adjudication determination that $1,892,028.27 plus adjudicator's fees and interest was payable to the plaintiff by the defendant.

On 25 February 2013 the defendant sued out of this list a Summons and Technology and Construction List Statement seeking to quash the determination.

On 11 April 2013 McDougall J quashed the determination.

However, between the date the proceedings were commenced and the date upon which the determination was quashed, the plaintiff had filed for, and on 1 March 2013 obtained, judgment against the defendant for $1,892,028.27. In addition, the plaintiff had procured the issue of garnishee orders in aid of enforcing its judgment, and a debtor of the defendant, responding to a garnishee order, had paid over $38,919.87 to the plaintiff.

On 17 April 2013 the defendant moved the Court by motion for orders that the judgment and garnishee orders be set aside and that any amount paid to the plaintiff in reliance upon or as a result of any such order or by any other means of enforcement be repaid to the defendant forthwith. There was no opposition to the making of orders setting aside the judgment and enforcement processes, and on 19 April 2013 I made orders accordingly.

The only issue remaining is whether the plaintiff should be ordered to pay back the monies it received as a consequence 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.

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Details

Case: [2013] NSWSC 517
Decision Date: 30 April 2013

CaseChat Overview and Summary

Go Electrical Pty Ltd brought an action against Class Electrical Services Pty Ltd in the Supreme Court, seeking the return of monies previously recovered under a judgment based on an adjudication determination. The adjudication determined that Go Electrical was owed a sum of money by Class Electrical. However, the adjudication determination was later quashed, and the judgment was set aside. The central issue before the court was whether the court had the discretion to order that the monies previously recovered by Go Electrical be returned to Class Electrical. The court needed to determine the rights of the parties under the circumstances, specifically focusing on the legal principles governing the repayment of monies in such situations.

The court examined the relevant statutory provisions and case law to ascertain the legal framework governing the repayment of monies in cases where an adjudication determination is quashed. It found that the statutory provisions did not provide explicit guidance on the court's discretion in ordering the repayment of monies. The court also considered the equitable principles that might apply, such as the principle that a party should not be unjustly enriched at the expense of another. The court concluded that, while there might be exceptional circumstances where a court could decline to order the repayment of monies, there were no such circumstances present in this case. The court held that, in the absence of any exceptional circumstances, it was obliged to order the repayment of the monies to the party from whom they were recovered.

In light of the above, the court ordered that Class Electrical Services Pty Ltd was to repay to Go Electrical Pty Ltd the sum of money previously recovered under the judgment based on the adjudication determination. The court found that the circumstances did not warrant any deviation from the general principle that a party who has recovered monies under a quashed adjudication determination must return those monies to the party from whom they were recovered. Consequently, the court set aside the judgment and ordered the repayment, leaving no discretion in this instance to refrain from ordering the return of the monies.

Orders