Max Cooper & Sons (Builders) Pty Ltd v M & E Booth Pty Ltd - [2003] NSWSC 929

Reported Decision:
47 ACSR 696

Supreme Court

CITATION: Max Cooper v Booth [2003] NSWSC 929

HEARING DATE(S): 04/09/2003

JUDGMENT DATE:
14 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 35

CATCHWORDS: Corporations Law. Application to set aside statutory demand. Demand based upon judgment pursuant to an adjudicator's determination under the Building & Construction Industry Security of Payment Act 1999. Whether a contractural ofsetting claim can be used to set aside the demand. Estoppel whether adjudicator's decision give rise to res judicata.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Building and Construction Industry Security of Payment Amendment Bill 2002
Corporations Act 2001

CASES CITED: Edge Technology Pty Ltd v Lite-On Technology Corp (2000) 18 ACLC 576
Goldspar Australia Pty Ltd v KWA Design Group Pty Ltd (1999) 17 ACLC 456)
Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37.
Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 743
Musico v Davenport & Ors [2003] NSWSC 977
Modern Engineering v Gilbert-Ash [1974] A.C. 689 at 717-718
Patstras v Commonwealth (1996) 9 FLR 152
Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365
Beckhaus v Brewarrina Council [2002] NSWSC 960
McGregor v Telford [1915] 3 KB 237
”

PARTIES :
Max Cooper & Sons (Builders) Pty Limited v M & E Booth & Sons Pty Limited

FILE NUMBER(S): SC 2684/2003

COUNSEL: Mr J.B. Conomy for plaintiff
Mr L.J. Aitken for defendant

SOLICITORS: Sachs Gerace Lawyers for plaintiff
Cutler Hughes & Harris for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Friday 14 November 2003

2684 of 2003 Max Cooper & Sons (Builders) Pty Ltd v M & E Booth & Sons Pty Limited

JUDGMENT

1 Master: This is an application to set aside a statutory demand served by the defendant on the plaintiff dated 14 April 2003. The defendant seeks payment of $51,341.23; the amount of an adjudication in proceedings under the Building and Construction Industry Security of Payment Act 1999 (the Act).

2 The plaintiff seeks a variation of the demand in respect of an offsetting claim for damages for defective work in the sum of $27,231. The plaintiff raises no dispute as to the balance of the demand, namely, $24,110.23.

History of the various proceedings

3 I will incorporate in this judgment a summary of the background facts which have been prepared by the plaintiff and which appear in the affidavit evidence.

4 The claim by the defendant arises out of building work undertaken in respect of a project at 43 Fitzwilliam Street, Vaucluse, where the plaintiff was the builder and the defendant was a sub-contract plumber. The owner of the subject property was Seager Rex Harbour.

5 The plaintiff had sued Seager Rex Harbour in the Consumer Trader and Tenancy Tribunal of New South Wales in relation to payment for work carried out by persons including the defendant…

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: [2003] NSWSC 929
Decision Date: 14 November 2003

CaseChat Overview and Summary

Max Cooper & Sons (Builders) Pty Ltd brought an application against M & E Booth Pty Ltd to set aside a statutory demand issued by M & E Booth. The demand was based on a judgment that resulted from an adjudicator's determination under the Building & Construction Industry Security of Payment Act 1999. The primary dispute centered on the enforceability of the statutory demand and whether the contractual offsetting claim could be used to set it aside. Additionally, the court had to determine if the adjudicator's decision could give rise to res judicata or estoppel.

The court was required to examine the nature of the statutory demand and whether it was validly issued under the Act. It also needed to assess if the contractual offsetting claim was sufficient grounds to set aside the demand. Furthermore, the court had to consider whether the adjudicator's decision could be relied upon as res judicata or if it could create an estoppel that would prevent the enforcement of the demand.

The court found that the statutory demand was validly issued under the Act and could not be set aside based on the contractual offsetting claim. It held that the adjudicator's determination was not a final and conclusive determination of the dispute, thus it did not give rise to res judicata. Additionally, the court ruled that the adjudicator's decision could not create an estoppel that would prevent the enforcement of the demand. Consequently, the application to set aside the statutory demand was dismissed.

The court ordered that Max Cooper & Sons (Builders) Pty Ltd pay M & E Booth Pty Ltd's costs of the application, which were assessed on an indemnity basis.

Orders