| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST
No. 4022 of 2009
| GROCON CONSTRUCTORS PTY LTD (ABN 50 006 703 091) | Plaintiff |
| v | |
| PLANIT COCCIARDI JOINT VENTURE (ABN 19 126 558 754) | Defendant |
| AND | |
| PLANIT COCCIARDI JOINT VENTURE (ABN 19 126 558 754) | Plaintiff by Counterclaim |
| v | |
| GROCON CONSTRUCTORS PTY LTD (ABN 50 006 703 091) | Defendant by Counterclaim |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 and 27 JULY 2009 | |
DATE OF JUDGMENT: | 27 JULY 2009 | |
CASE MAY BE CITED AS: | GROCON CONSTRUCTORS v PLANIT COCCIARDI JOINT VENTURE | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 339 | |
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INJUNCTION - Building and Construction Industry Security of Payment Act 2002 – balance of convenience pending hearing of application for judicial review.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M.A. Robins | Nathan Kuperholz |
| For the Defendant | Mr G. John Digby QC and Mr R. Andrew | LAC Lawyers |
HIS HONOUR:
In this matter the plaintiff in the proceeding ("Grocon") seeks an interlocutory injunction in the form of the relief set out in its summons filed 16 July 2009.
Grocon's summons seeks to restrain the defendant ("PCJV") from seeking to take action in respect of a determination which it describes as a purported determination made by a review adjudicator (“the review determination”) pursuant to the Building and Construction Industry Security of Payment Act 2002 ("the Act"). It also challenges a determination of the adjudicator who determined the matter prior to the review being conducted (“the adjudication determination”).
In brief compass, the relevant recent history of the proceeding is as follows: On 24 April 2009 PCJV purported to serve a payment claim under the Act for the sum of $544,841. I say “purported” to because unless otherwise determined, it was in fact a payment claim under the Act for the sum of $544,841. The matter came on for hearing before me on 6 May 2009 on the application of Grocon seeking to have it determined that the payment claim made under the Act was in conflict with the proceeding which had already been instituted under the Act namely paragraphs [39] to [47] of the counterclaim in this proceeding and was thereby an abuse of process. I gave leave to PCJV to discontinue its claims made pursuant to the Act in the proceeding, namely paragraphs [39] to [47] of its counterclaim. Grocon on 8 May 2009 then served a payment schedule under the Act. On the 21st of that month PCJV made an adjudication application under the Act and delivered on that occasion supporting submissions. On 28 May Grocon served an adjudication response under the Act. On 11 June of this year PCJV served responding submissions. The determination of the adjudicator appointed under the Act, Mr John O'Brien, was delivered on 18 June of 2009, being the adjudication determination. Mr O'Brien's determination as the adjudicator appointed under the Act was in favour of PCJV. It determined that the whole of the sum claimed,…
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- Case
- [2009] VSC 339
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether an injunction should be issued to restrain Planit Cocciardi from pursuing payment claims under the Act, pending the outcome of the judicial review application. The court considered the balance of convenience and whether Grocon had demonstrated a strong likelihood of success in its claim that the adjudication process was flawed. The court also assessed the potential harm to both parties if an injunction was or was not granted.
The court ruled that an interlocutory injunction should be granted. It found that Grocon had shown a significant likelihood that the adjudication process had been improperly conducted, and that the balance of convenience favoured Grocon. The potential financial harm to Grocon, along with the risk of project delays, outweighed the harm to Planit Cocciardi. The court emphasised that the injunction was not a decision on the merits of the case but a preliminary measure to preserve the status quo pending the judicial review.
The court issued an injunction restraining Planit Cocciardi from pursuing payment claims under the Act until the judicial review application was determined. This order aimed to ensure that Grocon could proceed with its construction activities without the immediate threat of payment demands that it believed were improperly made.
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