Grave v Blazevic Holdings Pty Ltd - [2010] NSWCA 324

New South Wales

Court of Appeal

CITATION: Grave v Blazevic Holdings [2010] NSWCA 324

HEARING DATE(S): 16 November 2010

JUDGMENT OF: Allsop P at 1; McDougall J at 2; Macfarlan JA at 40

EX TEMPORE JUDGMENT DATE: 16 November 2010

DECISION:
1. Application for leave to appeal granted.
2. Notice of appeal be filed and served within 7 days.
3. Appeal allowed.
4. Set aside the orders of the District Court (Delaney DCJ) made on
1 December 2009 and in lieu thereof:
(a) set aside the default judgment and let in the defendant to defend the proceedings; and
(b) order that the costs of each of the plaintiff and defendant in the District Court relating to the motion to set aside the default judgment be costs in the proceedings.
5. Respondent pay the appellant’s costs of the appeal including the application for leave to appeal. The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled. Such order for costs be stayed until the resolution of proceedings.
6. The proceedings be removed from the District Court to the Supreme Court and placed in the Technology and Construction List.
7. The matter be listed for directions on Friday 26 November 2010 before the Technology and Construction List Judge with a view to the expeditious resolution of the question as to whether the applicant, Mr Grave, is a relevant party to the “construction contract” for the purpose of the Building and Construction Industry Security of Payment Act 1999 (NSW).
8. Set aside order 3 made by Young JA on 12 July 2010 concerning the provision of a guarantee. Any guarantee provided by or pursuant to order 3 of Young JA made on 12 July 2010 be delivered up to the applicant forthwith.
9. The applicant as defendant serve his defence on the respondent as plaintiff on or before 24 November 2010 and provide a copy to the Technology and Construction List Judge on 26 November 2010.
The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.

CATCHWORDS: APPEAL – civil – judgment – whether applicant had shown arguable defence – whether primary judge erred in construction and application of ss 14 and 15 – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 14, 15, 32. - STATUTORY INTERPRETATION – principles – reading provision in context – purpose and object – meaning of “person who, under the construction contract concerned, is or may be liable to make payment” in s 13(1) – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 3, 8, 13, 14, 15. - BUILDING AND ENGINEERING CONTRACTS – remuneration – statutory…

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: [2010] NSWCA 324
Decision Date: 16 November 2010

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a dispute between Mr Grave (the applicant) and Blazevic Holdings Pty Ltd (the respondent). The primary judge had refused to set aside a default judgment entered against Mr Grave. The core of the dispute revolved around the application of the *Building and Construction Industry Security of Payment Act 1999* (NSW) and whether Mr Grave had an arguable defence to the respondent's claim.

The legal issues before the Court of Appeal included whether the primary judge erred in the construction and application of sections 14 and 15 of the *Building and Construction Industry Security of Payment Act 1999* (NSW). Specifically, the court was required to determine if Mr Grave had demonstrated an arguable defence, which necessitated an interpretation of the meaning of "person who, under the construction contract concerned, is or may be liable to make payment" as found in section 13(1) of the Act, read in the context of the Act's purpose and object.

The Court of Appeal allowed the appeal, finding that Mr Grave had shown an arguable defence. The court set aside the default judgment entered in the District Court and permitted Mr Grave to defend the proceedings. The court also ordered that the costs of the motion to set aside the default judgment in the District Court be costs in the proceedings. Furthermore, the respondent was ordered to pay the appellant’s costs of the appeal, with a stay on the costs order until the resolution of the proceedings. The proceedings were removed to the Supreme Court and placed in the Technology and Construction List for expeditious resolution of the question of whether Mr Grave was a relevant party to the construction contract for the purposes of the Act. The court also set aside a previous order concerning the provision of a guarantee and directed that any such guarantee be delivered up to the applicant. Mr Grave was ordered to serve his defence by a specified date.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Notice of appeal be filed and served within 7 days.

3. Appeal allowed.

4. Set aside the orders of the District Court (Delaney DCJ) made on

1 December 2009 and in lieu thereof:

(a) set aside the default judgment and let in the defendant to defend the proceedings; and

(b) order that the costs of each of the plaintiff and defendant in the District Court relating to the motion to set aside the default judgment be costs in the proceedings.

5. Respondent pay the appellant’s costs of the appeal including the application for leave to appeal. The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled. Such order for costs be stayed until the resolution of proceedings.

6. The proceedings be removed from the District Court to the Supreme Court and placed in the Technology and Construction List.

7. The matter be listed for directions on Friday 26 November 2010 before the Technology and Construction List Judge with a view to the expeditious resolution of the question as to whether the applicant, Mr Grave, is a relevant party to the “construction contract” for the purpose of the Building and Construction Industry Security of Payment Act 1999 (NSW).

8. Set aside order 3 made by Young JA on 12 July 2010 concerning the provision of a guarantee. Any guarantee provided by or pursuant to order 3 of Young JA made on 12 July 2010 be delivered up to the applicant forthwith.

9. The applicant as defendant serve his defence on the respondent as plaintiff on or before 24 November 2010 and provide a copy to the Technology and Construction List Judge on 26 November 2010.

The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.

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.

CITATION:	Grave v Blazevic Holdings [2010] NSWCA 324
HEARING DATE(S):	16 November 2010
JUDGMENT OF:	Allsop P at 1; McDougall J at 2; Macfarlan JA at 40
EX TEMPORE JUDGMENT DATE:	16 November 2010
DECISION:	1. Application for leave to appeal granted. 2. Notice of appeal be filed and served within 7 days. 3. Appeal allowed. 4. Set aside the orders of the District Court (Delaney DCJ) made on 1 December 2009 and in lieu thereof: (a) set aside the default judgment and let in the defendant to defend the proceedings; and (b) order that the costs of each of the plaintiff and defendant in the District Court relating to the motion to set aside the default judgment be costs in the proceedings. 5. Respondent pay the appellant’s costs of the appeal including the application for leave to appeal. The respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW) if otherwise entitled. Such order for costs be stayed until the resolution of proceedings. 6. The proceedings be removed from the District Court to the Supreme Court and placed in the Technology and Construction List. 7. The matter be listed for directions on Friday 26 November 2010 before the Technology and Construction List Judge with a view to the expeditious resolution of the question as to whether the applicant, Mr Grave, is a relevant party to the “construction contract” for the purpose of the Building and Construction Industry Security of Payment Act 1999 (NSW). 8. Set aside order 3 made by Young JA on 12 July 2010 concerning the provision of a guarantee. Any guarantee provided by or pursuant to order 3 of Young JA made on 12 July 2010 be delivered up to the applicant forthwith. 9. The applicant as defendant serve his defence on the respondent as plaintiff on or before 24 November 2010 and provide a copy to the Technology and Construction List Judge on 26 November 2010. The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.