Jem Developments Pty Ltd v Hansen Yuncken Pty Ltd - [2006] NSWSC 1087

Reported Decision:
68 NSWLR 100

New South Wales

Supreme Court

CITATION: Jem Developments Pty Ltd & Anor v Hansen Yuncken Pty Ltd [2006] NSWSC 1087

HEARING DATE(S): 22/9/06

JUDGMENT DATE :
18 October 2006

JURISDICTION: Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Notice of motion seeking dismissal of plaintiff's summons or stay of proceedings to be dismissed

CATCHWORDS: Building and construction - Building Construction Industry Security of Payment Act 1999 - Proper construction of s 25 (4) of Act - Meaning of words "commences proceedings to have the judgment set aside" - Whether a respondent to an application under the Act against whom a judgment debt following a determination has been entered, may albeit eschewing making an application to have the judgment set aside, seek any and if so what form of declaratory and associated relief challenging the validity of the determination.

LEGISLATION CITED: Building Construction Industry Security of Payment Act 1999 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED: Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292
Bropho v Western Australia (1990) 171 CLR 1
Façade Innovations Pty Ltd v Timwin Constructions Pty Ltd [2005] NSWCA 197
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd (2005) 62 NSWLR 385
Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Newcastle City Council v GIO General Ltd (1996-97) 191 CLR 85
R v Young (1999) NSWCCA 166
Saraswati v R (1991) 172 CLR 1
Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152
Thompson v Goold & Co [1910] AC 409
Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275
Vickers, Sons & Maxim Ltd v Evans [1910] AC 444
Wentworth Securities v Jones [1980] AC 74
Wills v Bowley [1983] 1 AC 57

PARTIES: Jem Developments Pty Limited (First Plaintiff)
Pacifico Holdings Pty Limited (Second Plaintiff)
Hansen Yuncken Pty Limited (First Defendant)
Sam Wilson (Second Defendant)

FILE NUMBER(S): SC 55060/06

COUNSEL: Mr MG Rudge SC, Mr DS Weinberger (Plaintiff/Respondent)
Mr G Inatey SC, Mr Miller (First Defendant/Applicant)

SOLICITORS: Salim Aiken Lawyers (Plaintiff/Respondent)
Crisp (First Defendant/Applicant)

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

Einstein J

Wednesday 18 October 2006

55060/06 Jem Developments Pty Limited & Anor v Hansen Yuncken Pty Ltd & Anor

JUDGMENT

The nature of the issues

1 The issues before the Court raise the question of whether or not a respondent to an application under the Building Construction Industry Security of Payment Act 1999 ["the Act"] against whom a judgment debt following a determination has been entered, may albeit eschewing making an application to have the judgment set aside, seek any and if so what form of declaratory and associated relief challenging the validity of the determination.

The related sets of proceedings

2 The following background to the matters presently before the court are agreed between the parties:

The contractual disputes

i. On 27 January…

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: [2006] NSWSC 1087
Decision Date: 18 October 2006

CaseChat Overview and Summary

Jem Developments Pty Ltd and Hansen Yuncken Pty Ltd were involved in a dispute related to the building and construction industry. The case was heard in the court, which had to decide on certain legal issues arising from the Building Construction Industry Security of Payment Act 1999. The primary focus was on the proper interpretation of section 25(4) of the Act, specifically the meaning of the phrase "commences proceedings to have the judgment set aside." The dispute centred on whether a respondent, who had a judgment debt entered against them following a determination under the Act, could seek declaratory and associated relief challenging the validity of the determination, even if they chose not to make an application to have the judgment set aside.

The court was required to determine whether a respondent to an application under the Act could seek any form of declaratory and associated relief, challenging the validity of the determination, without making an application to have the judgment set aside. The court had to consider whether the phrase "commences proceedings to have the judgment set aside" in section 25(4) of the Act meant that a respondent could not seek any form of relief, or if there were circumstances in which such relief could be sought.

The court found that the phrase "commences proceedings to have the judgment set aside" in section 25(4) of the Act did not preclude a respondent from seeking declaratory and associated relief challenging the validity of the determination. The court held that the proper construction of the phrase did not mean that a respondent could not seek any form of relief, but rather that the respondent must first commence proceedings to have the judgment set aside before seeking other forms of relief. The court further found that the respondent could seek declaratory and associated relief, if the determination was invalid, and the respondent had not already had the opportunity to challenge the validity of the determination.

The court's decision clarified the scope of relief available to a respondent under the Building Construction Industry Security of Payment Act 1999, and provided guidance on the proper construction of section 25(4) of the Act. The court found that a respondent could seek declaratory and associated relief challenging the validity of the determination, even if they chose not to make an application to have the judgment set aside, as long as they first commenced proceedings to have the judgment set aside. The court's decision provides important guidance for parties involved in disputes under the Act, and highlights the importance of proper interpretation of the Act's provisions.

Orders