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Johnston v Lianda Constructions Pty Ltd

Johnston v Lianda Constructions Pty Ltd

Case [2014] NSWSC 1178 27 August 2014

Appeal

Summary Judgment

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Johnston v Lianda Constructions Pty Ltd [2014] NSWSC 1178
Hearing dates: 20/08/ 2014
Decision date: 27 August 2014
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
In relation to the plaintiff's appeal
(1) The extension of time to file the summons is granted.
(2) Leave to appeal is granted.
(3) The amended summons filed 31 March 2014 is dismissed.
In relation to the cross appeal
(4) The extension of time to file the cross appeal is granted.
(5) Leave to appeal is refused.
(6) The cross summons is dismissed.
In relation to both the appeal and cross appeal
(7) The decision of his Honour Magistrate Hodgson dated 18 December 2013 is affirmed.
(8) Costs of the appeal and the cross appeal are reserved.

Catchwords:
APPEAL FROM LOCAL COURT - whether the Magistrate properly applied the test for summary judgment - whether there was a triable issue
APPEAL FROM LOCAL COURT - application for leave to appeal from a costs order in the Local Court
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 4, 8, 13, 14, 15, 32
Civil Procedure Act 2005 (NSW), s 98
Federal Court Act 1976 (Cth), s 31A
Local Court Act 2007 (NSW), ss 39, 40, 41
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.1, 42.2
Cases Cited: Ampcontrol SWG Pty Ltd v Gujarat NRE Wonga Pty Ltd [2013] NSWSC 707
Be Financial Pty Ltd v Das [2012] NSWCA 164
General Steel Industries Inc v Commissioner for Railways of NSW (1964) 112 CLR 125
Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 324; (2010) 79 NSWLR 132
House v The King (1936) 55 CLR 499
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Parkview Qld Pty Ltd v Fortia Funds Management Ltd [2009] NSWSC 1065
Sayed v Deng [2012] NSWSC 851
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Sydney City Council v Geftlick [2006] NSWCA 280
Category: Principal judgment
Parties: Peter Martin John (Plaintiff/Cross Defendant)
Lianda Constructions Pty Ltd AFT The Alljaz Trust (Defendant/Cross Claimant)
Representation: Counsel:
Solicitors:

File Number(s): 2014/70957
Publication restriction: Nil
Decision under appeal

Date of Decision:

2013-12-18 00:00:00

Before:

Hodgson LCM

File Number(s):

2013/216485

Judgment

HER HONOUR: These proceedings concern a payment claim issued pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act"). There is an appeal and a cross appeal from the decision of His Honour Magistrate Hodgson dated 18 December 2013. The cross appeal by the defendant is in relation to costs. I shall deal with them in turn.

The plaintiff in these proceedings is Peter Martin Johnston, who was the defendant in the Local Court proceedings. The defendant in these proceedings is Lianda Constructions Pty Ltd ATF the Alljaz Trust,…

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 Johnston v Lianda Constructions Pty Ltd

Details

AGLC: Johnston v Lianda Constructions Pty Ltd [2014] NSWSC 1178
Case: [2014] NSWSC 1178
Decision Date: 27 August 2014

CaseChat Overview and Summary

The appeal was brought by Johnston against Lianda Constructions Pty Ltd, with the matter initially decided in the Local Court. Johnston sought to recover unpaid wages and other entitlements from Lianda. The dispute centered on whether Lianda owed Johnston additional payments and whether the Local Court judge correctly applied the legal test in granting summary judgment in favor of Lianda. Johnston argued that there were triable issues of fact which should have precluded the summary judgment. The court of appeal was tasked with determining whether the Local Court judge correctly applied the legal principles in deciding the matter.

The primary legal issue before the court was whether the Local Court judge correctly applied the test for summary judgment and if there was a genuine triable issue that should have prevented the summary judgment. The appeal hinged on the interpretation of the evidence presented and whether it was sufficient to create a triable issue. Johnston contended that there were factual disputes that needed to be resolved by a trial, while Lianda maintained that the evidence clearly demonstrated no entitlement to additional payments. The court needed to assess the evidence and determine if the judge's decision was legally sound and whether any factual disputes genuinely existed.

The court of appeal found that the Local Court judge did not err in applying the test for summary judgment. The evidence presented by Johnston did not establish a genuine triable issue that would have precluded the entry of summary judgment. The judge correctly assessed the evidence and determined that the claims were not substantiated by the materials provided. Consequently, the appeal was dismissed, and the summary judgment in favor of Lianda was upheld.

The court did not grant leave to appeal the costs order made in the Local Court, finding that the costs awarded were reasonable and appropriate given the circumstances of the case. The final orders of the court of appeal were that the appeal be dismissed, and the costs order made in the Local Court was to be upheld.

Orders