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Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd

Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd

Case [2017] VCC 1382

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AGLC: Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd [2017] VCC 1382
Case: [2017] VCC 1382
Decision Date: 28 September 2017

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Citations

Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd [2017] VCC 1382

Most Recent Citation

Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14

Cases Citing This Decision

Piastrino v Seascape Constructions Pty Ltd [2022] VSC 202
Citation 1 (Para 1)

…Promax Building Developments Pty Ltd v PCarol & Co Pty Ltd [2017] VCC 495, [27] and also to Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd [2017] VCC 1382 (Burchell JR), [24] and [27].…
Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSC 14
Citation 2

…ly authority referred to on the question was Maxcon Constructions Pty Ltd v Ily Australia Pty Ltd [2017] VCC 1769 (Judge Anderson) on review from [2017] VCC 1382 (Burchell JR), which decisions were both to the contrary. [97](1985) 157 CLR 1, 15 (citations omitted). See also Golets v Southbourne Homes Pty Ltd [2017…

Cases Cited

Statutory Material Cited

Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113
Citation 1 (Para 1)

…Further, in the recent decision in Abergeldie Contractors Pty Ltd v Fairfield City Council [2017] NSWCA 113, the Court of Appeal held at [40]-[46] that whether practical completion has been achieved is a question of fact to be determined by the Superintendent, and that the date of practical completion is taken to b…
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52
Citation 2 (Para 1)

…f the final payment claim was premature and, therefore, invalid: Southern Han Breakfast Point Pty Ltd (In liquidation) v Lewence Construction Pty Ltd (2016) 340 ALR 193 at [1]-[2].…
Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
Citation 3 (Para 1)

…he purpose of profit on a continuous and repetitive basis ”: cf Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 at [197] per Edelman J in relation to section 5 of the Australian Consumer Law which mentions “ carrying on business ”:…
Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304
Citation 4 (Para 1)

…In Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304 at [344]-[359], in dealing with the phrase “ carrying on business ”, Justice Besanko J observed:…
Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2014] VSCA 326
Citation 5 (Para 1)

…In Dura (Australia) Constructions Pty Ltd (in liquidation) (receivers and managers appointed) v Hue Boutique Living Pty Ltd [2014] VSCA 326, in relation to funds set aside as security in a joint account set up by each of the parties’ solicitors, the interest acquired by the plaintiff was an equitable charge over t…
Dial D Pty Ltd as trustee for the Smith Street Unit Trust v Kingston Building (Australia) Pty Ltd [2013] NSWCA 277
Citation 6 (Para 1)

…6 must have been received by the Superintendent: cf Dial D Pty Ltd as Trustee for the Smith Street Unit Trust v Kingston Building (Australia) Pty Ltd [2013] NSWCA 277 at [51]-[69]. As a matter of law, a person who is a Superintendent and who has the certifying powers under the Contract is also appointed an agent to…
Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248
Citation 7 (Para 1)

…ayment claim: Hawkins Constructions (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136 at [20]; Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 at [10]-[15].…
Bucklands Convalescent Hospital v Taylor Projects Group [2007] NSWSC 1514
Citation 8 (Para 1)

…Further, the Superintendent can issue a payment schedule as agent of the principal: Bucklands Convalescent Hospital v Taylor Projects Group (2007) NSWSC 1514.…
R & D Holdings Pty Ltd v Deputy Commissioner of Taxation [2006] FCA 981
Citation 9 (Para 2)

…ound to constitute the “ carrying on of a business ” in the context of Taxation Cases in R & D Holdings Pty Ltd v Deputy Commissioner of Taxation [2006] FCA 981 per Justice Finn at [33], [39] and [42] and the Federal Commissioner of Taxation v McDonald (1987) 78 ALR 588 per Justice Beaumont at 599.…
RTA v John Holland [2006] NSWSC 567
Citation 10 (Para 1)

…clusive evidence of the final amount owing by one party to another (until the contrary is proven): John Holland Pty Ltd v Traffic Authority NSW [2006] NSWSC 567.…
Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1
Citation 11 (Para 1)

…ment claims: Seabay Properties Pty Ltd v Galvin Constructions Pty Ltd [2011] VSC 183 at [148]; Brookhollow Pty Ltd v R & R Consultants Pty Ltd & Anor [2006] NSWSC 1 at [33].…
McDonald v Deputy Commissioner of Taxation [2005] NSWSC 2
Citation 12 (Para 2)

…Ltd v Deputy Commissioner of Taxation [2006] FCA 981 per Justice Finn at [33], [39] and [42] and the Federal Commissioner of Taxation v McDonald (1987) 78 ALR 588 per Justice Beaumont at 599.…
Hawkins Construction (Aust) Pty Ltd v Mac's Industrial Pipework Pty Ltd [2002] NSWCA 136
Citation 13 (Para 1)

…d have been able to identify the amount sought by the final payment claim: Hawkins Constructions (Aust) Pty Ltd v Mac’s Industrial Pipework Pty Ltd [2002] NSWCA 136 at [20]; Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 at [10]-[15].…
Thiel v Federal Commissioner of Taxation [1990] HCA 37
Citation 14

…s, activities engaged in for the purpose of profit on a continuous and repetitive basis ”: see Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338, 350 (Dawson J); Pioneer Concrete Services Ltd v Galli [1985] VicRp 68; [1985] VR 675, 705 (the Court); Hope v Bathurst City Council [1980] HCA…
United Dominions Corporation Ltd v Brian Pty Ltd [1985] HCA 49
Citation 15 (Para 1)

…stle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 3 ALR 409; 131 CLR 321 and United Dominions Corp Ltd v Brian Pty Ltd (1985) 60 ALR 741 ; 157 CLR 1 at 15, in which Justice Dawson said. A single adventure under our law may or may not, depending upon its scope, amount to the carrying on of a bu…
Hope v Bathurst City Council [1980] HCA 16
Citation 16

…38, 350 (Dawson J); Pioneer Concrete Services Ltd v Galli [1985] VicRp 68; [1985] VR 675, 705 (the Court); Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 8-9 (Mason J; Gibbs, Stephen and Aickin JJ agreeing). [Emphasis added]…
Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd [1974] HCA 22
Citation 17 (Para 1)

…t is possible that a single joint venture will suffice: see Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 3 ALR 409; 131 CLR 321 and United Dominions Corp Ltd v Brian Pty Ltd (1985) 60 ALR 741 ; 157 CLR 1 at 15, in which Justice Dawson said. A single adventure under our la…
Fadden v Deputy Federal Commissioner of Taxation [1943] HCA 20
Citation 18 (Para 1)

…are regarded as together making up the “ owner ” and that until the funds are released, each person “ holds the whole and holds nothing ”: Fadden v Deputy Federal Commissioner of Taxation (1949) 68 CLR 76 at 85.…
Russell v Scott [1936] HCA 34
Citation 19 (Para 1)

…nies be released to the plaintiff, or legal right to the monies by survivorship; neither of which has occurred in the present case: Russell v Scott (1936) 55 CLR 440 at 448.…
Hope v The Council of the City of Bathurst [1996] HCATrans 364
Citation 20

…terprise in the nature of a going concern, that is to say, activities engaged in for the purpose of profit on a continuous and repetitive basis ( Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 8-9 per Mason J).…
Vinson v Neerim Properties Developments Pty Ltd [2016] VSC 321
Citation 21 (Para 1)

…e engaged in for the purpose of profit on a continuous and repetitive basis ”; see also Vinson v Neerim Properties Developments Pty Ltd [2016] VSC 321 per Vickery J.…
Burbank Australia Pty Ltd v Owners Corporation [2015] VSC 160
Citation 22 (Para 1)

…rtments which has been found to fall within the purview of the construction of homes: Burbank Australia Pty Ltd v Owners Corporation PS447493 [2015] VSC 160 at [30] per Justice McDonald. It is not necessary that the registered proprietor of the land on which the works are being undertaken be the building owner, t…
Mackie Pty Ltd v Counahan [2013] VSC 694
Citation 23 (Para 1)

…In Mackie Pty Ltd v Counahan & Anor [2013] VSC 694 at [65]-[68], [70]-[71] and [74]-[75], Justice Vickery dealt with the description requirements for final payment claims, being a statement (express or implied) that the claim is a final payment claim, that the works under the contract are complete and a statement…
Director of Housing v Structx Pty Ltd T/As Bizibuilders [2011] VSC 410
Citation 24 (Para 1)

…cept where the building owner “ is in the business of building residences ”. In Director of Housing of the State of Victoria v Strutx Pty Ltd [2011] VSC 410 at [28], [39]-[41], it was held that the contractor could not apply the Act’s process because it had not established that the Director was engaged in “ the c…
Seabay Properties Pty Ltd v Galvin Construction Pty Ltd [2011] VSC 183
Citation 25 (Para 1)

…lculated or arrived at. This is in contrast to what is required for progress payment claims: Seabay Properties Pty Ltd v Galvin Constructions Pty Ltd [2011] VSC 183 at [148]; Brookhollow Pty Ltd v R & R Consultants Pty Ltd & Anor [2006] NSWSC 1 at [33].…
Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199
Citation 26 (Para 1)

…Further, in Metacorp Pty Ltd v Andeco Constructions [2010] VSC 199, it was held that service on the Superintendent rather than the party “ liable to make payment ” under the Act was valid as the Superintendent has actual or ostensible authority to receive the payment claim as all previous payment claims had been…
Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106
Citation 27 (Para 1)

…laims to be due ” pursuant to section 14(2) of the Act. However, Justice Vickery in Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106 at [49] and [51] held that this need not be “ an overly exacting exercise ” or involve “ an artificial degree of precision and particularity ”. Instead:…
Southern Region Pty Ltd v State of Victoria (No 3) [2001] VSC 436
Citation 28 (Para 1)

…one Pty Ltd v Tryton Pty Ltd (2002) 42 ACSR 49, 49) or " simply the last of the payment claims " ( Southern Region Pty Ltd v State of Victoria (No 3) [2001] VSC 436 at [32]), see also Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248 at [17].…
Promax Building Developments Pty Ltd v PCarol & Co Pty Ltd [2017] VCC 495
Citation 29 (Para 1)

…Judge Anderson’s decision in Promax Building Developments Pty Ltd v PCarol & Co Pty Ltd [2017] VCC 495 provides guidance on the application of Justice Vickery’s decision in the Director of Housing v Strutx as to when a building owner is “ in the business of building residences ” for the purposes of section 7(2)(b…
Fulconstruction Pty Ltd v ABP Consultants Pty Ltd [2016] VCC 1732
Citation 30 (Para 1)

…he defendant to defend the claim. This procedure was sufficient to determine the application: Fulconstruction Pty Ltd v ABP Consultants Pty Ltd [2016] VCC 1732 at [8]-[11] per Judge Anderson.…
J G King Pty Ltd v Adiel Property Holdings Pty Ltd [2015] VCC 1600
Citation 31 (Para 1)

…ia would succeed in showing that it was not involved in the business of building residences: cf JG King Pty Ltd v Adiel Property Holdings Pty Ltd [2015] VCC 1600 per Judge Anderson at [5], [7], [8], [14], [23], [24] and [27].…

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