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Jem v St Hilliers

Jem v St Hilliers

Case [2007] NSWSC 245 29 March 2007

Civil Litigation & Procedure

Commercial Law

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CITATION: Jem v St Hilliers [2007] NSWSC 245

HEARING DATE(S): 19/03/2007

JUDGMENT DATE :
29 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

DECISION: Paragraph 26

CATCHWORDS: Application to set aside statutory demands under s459G of the Corporations Act. Demands relate to adjudication under Building & Construction Industry Security of Payment Act 1999 (NSW). Consideration of offsetting claims based upon Superintendent's certificate issued under contract. - Demand set aside.

PARTIES: Jem Number Two Pty Ltd & Ors v St Hilliers Pty Ltd

FILE NUMBER(S): SC 5340 of 2006

COUNSEL: Mr A. Vincent for plaintiffs
Mr M. Aldridge SC for defendant

SOLICITORS: Salim Lawyers for plaintiffs
Colin Biggers and Paisley for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 29 March 2007

5340/2006 Jem Number Two Pty Ltd & Ors v St Hilliers Pty Ltd

JUDGMENT

1 His Honour: These proceedings are to set aside three statutory demands served by the defendant on the plaintiffs on 27 September 2006 claiming a sum of $362,673.79. The demands relate to a certificate of judgment obtained in the District Court which followed upon the granting of a determination by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW). The defendant was the contractor in respect of the construction of some units for the plaintiff companies.

The plaintiffs’ claim

2 The plaintiffs claimed that there were offsetting claims which exceeded the amount due under the judgment in respect of the following areas:

“(a) the Plaintiffs have an offsetting claim for the sum certified by the Superintendent as owing to the Plaintiffs under the building contract on 13 June 2006 in the amount of $616,072.93;

(b) the Plaintiffs have an offsetting claim for restitution for defective and incomplete works on the basis set out in the payment schedule and payment certificate issued on 13 June 2006 and the adjudication response dated 6 July 2006;

(c) the Plaintiffs have an offsetting claim for the sum certified by the Superintendent as owing to the Plaintiffs under the building contract on 11 September 2006 in the amount of $628,426.76;

(d) the Plaintiffs have an offsetting claim for restitution for defective and incomplete works on the basis set out in the payment schedule and payment certificate issued on 11 September 2006;”

3 The plaintiffs have also claimed that there was a genuine dispute but this claim was properly abandoned during the course of the argument before me. The defendant says that all claims are ones, which were not foreshadowed in the affidavit filed within the time limited for the making of the application. In respect of those claims based upon the material in the various payment schedules it submitted that such claims have not been supported by evidence in this case.

Chronology

4 The defendant made a payment claim on the plaintiffs on the 26 May 2006 in the sum of $603,396.21. In its payment schedule of 13 June 2006…

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.

Continue reading Jem v St Hilliers

Details

AGLC: Jem v St Hilliers [2007] NSWSC 245
Case: [2007] NSWSC 245
Decision Date: 29 March 2007

CaseChat Overview and Summary

The parties in this case were Jem and St Hilliers. The dispute pertained to statutory demands made under the Corporations Act, specifically section 459G, which were connected to an adjudication process under the Building and Construction Industry Security of Payment Act 1999 (NSW). The dispute arose from a contractual disagreement about the payment obligations under a construction contract and the validity of the claims and counterclaims made by the parties. The matter was heard in the Federal Court of Australia.

The court had to determine several legal issues, including the validity of the statutory demands, the enforceability of the adjudication process, and the admissibility of offsetting claims based on a Superintendent’s certificate. The primary question was whether the statutory demands could be set aside due to the ongoing dispute over the payment obligations and the interplay of the various statutory frameworks. Another significant issue was the interpretation of the relevant statutory provisions and how they applied to the facts of this case.

In its decision, the court held that the statutory demands were not enforceable due to the unresolved dispute over the payment obligations. The court found that the adjudication process was valid but did not provide a final determination on the payment amounts owed. The court also considered the offsetting claims based on the Superintendent’s certificate and concluded that these claims were relevant to the dispute. Consequently, the court set aside the statutory demands, finding that the underlying issues concerning the payment obligations and the validity of the claims needed to be resolved through the appropriate legal processes. The court's decision provided clarity on the application of the statutory frameworks and the procedural steps required to address the dispute effectively.

Orders