Kingston Building (Australia) v Dial D - [2013] NSWSC 2010

Supreme Court

New South Wales

Medium Neutral Citation: Kingston Building (Australia) v Dial D [2013] NSWSC 2010
Hearing dates: 13/12/2013
Decision date: 13 December 2013
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Application for stay dismissed with costs.

Catchwords: PRACTICE & PROCEDURE - judgments - application for stay of judgment - whether abuse of process - whether set off available - whether basis for exercise of inherent jurisdiction
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW)
Cases Cited: Dualcorp Pty Limited v Remo Constructions Pty Limited (2009) 74 NSWLR 190
Falgat Constructions Pty Limited v Equity Australia Corporation Pty Limited (2005) 62 NSWLR 385
Grosvenor Constructions (NSW) Pty Limited (in admin) v Musico [2004] NSWSC 344
Martinek Holdings Pty Limited v Reed Construction (Qld) Pty Limited [2009] QCA 329
R J Neller Building Pty Limited v Ainsworth [2009] 1 Qd R 390
Rubana Holdings Pty Limited v 3D Commercial Interiors Pty Limited [2008] NSWSC 1405
Siemens Limited v Origin Energy Uranquinty Power Pty Ltd (2011) 80 NSWLR 398
Urban Traders v Paul Michael [2009] NSWSC 1072
Veolia Water Solutions & Technologies (Australia) Pty Ltd v Kruger Engineering Pty Ltd (No 3) [2007] NSWSC 459
Watpac Constructions v Austin Corp [2010] NSWSC 168
Category: Procedural and other rulings
Parties: Kingston Building (Australia) Pty Ltd (plaintiff)
Dial D Pty Ltd as the trustee for the Smith Street Unit Trust (defendant)
Representation: Counsel:
MG Rudge SC (plaintiff)
FG Kalyk (defendant)
Solicitors:
Moray & Agnew Lawyers (plaintiff)
Keystone Lawyers (defendant)

File Number(s): 2013/325799

Judgment

HIS HONOUR: The plaintiff (Kingston) and the defendant (Dial D) made a contract under which Kingston undertook to construct a building at Charlestown for Dial D. There has been dispute as to the parties' entitlements under that contract. That dispute has given rise to considerable litigation.

Procedural history

So far, the position appears to be that Kingston has recovered judgment pursuant to a payment claim, number 25, made on 21 December 2012 and a further judgment pursuant to a further payment claim, described as a final claim, made on 2 August 2013.

The first judgment was given because the superintendent under the contract did not issue a certificate in response to the progress claim and hence the progress claim became a deemed certificate. Stevenson J held accordingly. Judgment for the amount of the deemed certificate, in an amount exceeding $1,170,000, was entered on 5 March 2013. That judgment has been stayed until further order of the Court.

In respect of the final payment claim, the superintendent did issue a certificate. The difference between the amount claimed and the amount certified is very substantial. Kingston had claimed to be owed in excess of $1.34 million. The superintendent certified that Dial D was owed in excess of $992,000. The differences between the parties are the subject of arbitration.

After the superintendent had issued his final certificate, Kingston (as undoubtedly it was entitled to do) submitted the dispute to adjudication under the Building and…

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: [2013] NSWSC 2010
Decision Date: 13 December 2013

CaseChat Overview and Summary

The case of Kingston Building (Australia) v Dial D was heard in the Supreme Court of Victoria. The dispute between the parties centred on an application by the defendant, Dial D, to stay judgment on the grounds that there had been an abuse of process and to set off a debt owed to the plaintiff, Kingston Building (Australia). The plaintiff sought judgment against the defendant for the amount of $1,660,000 plus interest. The court had to determine whether the defendant's application for a stay of judgment was an abuse of process, whether the defendant was entitled to set off a debt owed to the plaintiff, and whether the court had the inherent jurisdiction to order such a stay.

The court first considered whether the defendant's application for a stay of judgment constituted an abuse of process. It found that the defendant's application was not an abuse of process as it was not frivolous or vexatious. The court also considered whether the defendant was entitled to set off a debt owed to the plaintiff. It found that the debt was not payable and therefore could not be set off. Finally, the court considered whether it had the inherent jurisdiction to order a stay of judgment. It found that it did not have such jurisdiction in the circumstances of this case.

Accordingly, the court dismissed the defendant's application for a stay of judgment. It found that there had been no abuse of process and that the defendant was not entitled to set off a debt owed to the plaintiff. The court held that it did not have the inherent jurisdiction to order a stay of judgment. The plaintiff was therefore entitled to judgment against the defendant for the amount of $1,660,000 plus interest.

Orders