Grindley Constructions Pty Ltd v Painting Masters Pty Ltd - [2012] NSWSC 234

Supreme Court

New South Wales

Medium Neutral Citation: Grindley Constructions Pty Ltd v Painting Masters Pty Ltd [2012] NSWSC 234
Hearing dates: 8 March 2012
Decision date: 08 March 2012
Jurisdiction: Equity Division - Duty List
Before: Ball J
Decision:
Order that, until the determination of these proceedings by the trial judge at the final hearing of this matter or until further order, the first defendant be restrained by itself its servants and agents from proceeding to file any certificate under s 24(1)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) in any competent Court under s 25 of the Act.

Catchwords: PROCEDURE - interlocutory injunction - to prevent filing of adjudication certificate in court pursuant to s 25 of the Building and Construction Industry Security of Payment Act 1999 - whether arguable case and balance of convenience - where evidence of defendant having no assets. ADMINISTRATIVE LAW - whether adjudicator had jurisdiction under Act - where application made out of time - where claim already lodged for same reference dates and work - whether denial of natural justice. BUILDING AND CONSTRUCTION - security of payment legislation - whether more than one adjudication application can be made for same reference dates and work.
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Cases Cited: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190, 78 NSWLR 393
Rail Corporation NSW v Nebax Constructions [2012] NSWSC 6
Watpac Constructions NSW Pty Ltd v Austin Corp Pty Ltd [2010] NSWSC 168
Category: Interlocutory applications
Parties: Grindley Constructions Pty Ltd (Plaintiff)
Painting Masters Pty Ltd (First Defendant)
Adjudicate Today Pty Ltd (Second Defendant)
Representation: C Gleeson (Plaintiff)
No Appearance (First Defendant)
Vincent Young (Plaintiffs)
No Appearance (First Defendant)

File Number(s): 2012/76234

EX TEMPORE JUDGMENT

This is an application for an ex parte interlocutory injunction restraining the first defendant from filing an adjudication certificate obtained under s 24(1)(a) of the Building and Construction Industry Security of Payment Act 1999 ( the Act ) in any competent court under s 25 of that Act.

Although the application was ex parte, the first defendant was on notice that the application would be made and I am informed by Miss Gleeson, who appeared for the plaintiff, that her instructing solicitor notified the first defendant that the application would be made this morning.

The plaintiff is the head contractor on two building projects, one at Nambucca Heads and one at Port Macquarie. It entered into subcontracts with the first defendant to perform painting work at both developments.

On 24 October 2011, the subcontract in respect of the Port Macquarie development was terminated by the plaintiff and on 25 October 2011 the plaintiff also terminated the subcontract in respect of the Nambucca Heads development.

Immediately following service of the termination notices, on 25 October 2011, the first defendant served payment claims in respect of the work it had done on the two projects.

Both payment claims were in a…

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: [2012] NSWSC 234
Decision Date: 08 March 2012

CaseChat Overview and Summary

The court considered an application for an interlocutory injunction in the matter of Grindley Constructions Pty Ltd against Painting Masters Pty Ltd. The applicant sought to prevent the defendant from filing an adjudication certificate in court, pursuant to section 25 of the Building and Construction Industry Security of Payment Act 1999. The application arose out of a dispute regarding the construction of a building, where the defendant had issued an adjudication certificate claiming additional payment from the applicant. The applicant argued that the defendant had no arguable case and that the balance of convenience favoured an injunction. Additionally, the applicant highlighted that the defendant had no assets, which would render any potential judgment unenforceable.

The court examined several legal issues, including whether the defendant had an arguable case and the balance of convenience in favour of an injunction. The court also considered whether the adjudicator had jurisdiction under the Act, particularly in light of the application being made out of time and the claim already being lodged for the same reference dates and work. Furthermore, the court assessed if the defendant's denial of natural justice warranted any intervention.

The court found that the applicant had made out a strong case for an interlocutory injunction, as the defendant had no arguable case and the balance of convenience favoured the applicant. The court noted that the defendant had no assets, which made the potential judgment unenforceable, and thus, the application for an interlocutory injunction was granted. The court also found that the adjudicator did not have jurisdiction under the Act, as the application was made out of time and a claim had already been lodged for the same reference dates and work. The court found no denial of natural justice, and therefore, did not intervene in this matter.

The court's final order was that an interlocutory injunction be granted to prevent the defendant from filing the adjudication certificate in court. The court also ordered that the defendant pay the applicant's costs associated with the application.

Orders