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Mosman Building and Constructions Pty Ltd v Banz Pty Ltd

Mosman Building and Constructions Pty Ltd v Banz Pty Ltd

Case [2021] NSWDC 61 12 March 2021

Stay of Proceedings

Compensatory Damages

Costs

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61
Hearing dates: 5 March 2021
Date of orders: 12 March 2021
Decision date: 12 March 2021
Jurisdiction: Civil
Before: Scotting DCJ
Decision:

The stay of enforcement of the judgment entered on 31 July 2020 is dissolved.

The amount of $248,059.50 retained in the District Court Trust Account and any interest accrued thereon since 7 August 2020 be paid to the Plaintiff, by payment to its solicitor’s Trust Account.

The plaintiff’s solicitor is to make payments from its Trust Account to the subcontractors set out in column 2 of the table appearing at [51] of the Affidavit of Kevin John Murphy affirmed 14 December 2020, being the amounts MBC concedes it is liable to pay to those entities.

The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

The costs of the Notice of Motion can be assessed forthwith.

Catchwords:
CIVIL PROCEDURE — Stay of enforcement of judgment

Legislation Cited:
Civil Procedure Act 2005
Building and Construction Industry Security of Payments Act 1999

Cases Cited:
Associated NewspapersLtd v Bancks (1951) 83 CLR 322
Australian Securities & Investment Commission v Matthews (2009) ACSR 559
Cherry v Park-Steele [2017] NSWCA 295
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Harvey v Phillips (1956) 95 CLR 235
Kilpatrick v Kotis (2004) 62 NSWLR 567
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Newey v Westpac Banking Corporation [2014] NSWCA 319
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) FCR 389
S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Tramways AdvertisingPty Ltdv Luna Park(NSW) Ltd (1938) 38 SR (NSW) 632
WIN Corporation Pty Ltd v Nine Network Pty Ltd [2016] NSWCA 297

Texts Cited:
Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020

Category: Procedural rulings
Parties: Mosman Building and Constructions Pty Ltd (Plaintiff)
Banz Pty Ltd (Defendant)
Representation:
Counsel: J Hyde (Plaintiff)
M Klooster (Defendant)
Solicitors: Wilkinson Building & Construction Lawyers (Plaintiff)
New South Lawyers (Defendant)

File Number(s): 2020/159136
Publication restriction: None

Judgment

Introduction

By Notice of Motion filed 15 December 2020, the plaintiff seeks an order for payment of the judgment sum out of Court, to it, for the purpose of paying amounts owed to subcontractors. This involves setting aside a prior agreement between the parties to stay enforcement of the judgment in…

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 Mosman Building and Constructions Pty Ltd v Banz Pty Ltd

Details

AGLC: Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61
Case: [2021] NSWDC 61
Decision Date: 12 March 2021

CaseChat Overview and Summary

Mosman Building and Constructions Pty Ltd (MBC) sought to dissolve a stay of enforcement of a judgment against Banz Pty Ltd (Banz), which had been entered on 31 July 2020. The dispute arose out of a construction project where MBC had engaged Banz as a subcontractor. The primary claim was for damages for breach of contract and other related claims. The court was asked to decide whether the stay of enforcement should be dissolved and, if so, how the funds retained in the District Court Trust Account should be distributed.

The central legal issue before the court was whether the stay of enforcement should be dissolved, and if so, how the funds held in the District Court Trust Account should be allocated. This involved interpreting the terms of the stay agreement, the obligations of the parties under the original judgment, and the equities of the situation, particularly in relation to the subcontractors who had not been paid.

The court found that the stay of enforcement should be dissolved because the conditions under which it had been imposed had not been met. The court also determined that the funds retained in the District Court Trust Account, along with any accrued interest since 7 August 2020, should be paid to MBC. Further, MBC was to distribute certain amounts to specified subcontractors from its solicitor's Trust Account, as per the concessions made in an affidavit. Finally, the court ordered that Banz was to pay MBC's costs of the Notice of Motion, either as agreed or assessed, and allowed for the immediate assessment of these costs.

In summary, the court dissolved the stay of enforcement, directed the payment of retained funds to MBC, mandated the distribution of specific amounts to subcontractors from MBC's solicitor’s account, and ordered Banz to pay MBC's costs of the Notice of Motion. The court also permitted the immediate assessment of these costs.

Orders

Orders of the court

The stay of enforcement of the judgment entered on 31 July 2020 is dissolved.

The amount of $248,059.50 retained in the District Court Trust Account and any interest accrued thereon since 7 August 2020 be paid to the Plaintiff, by payment to its solicitor’s Trust Account.

The plaintiff’s solicitor is to make payments from its Trust Account to the subcontractors set out in column 2 of the table appearing at [51] of the Affidavit of Kevin John Murphy affirmed 14 December 2020, being the amounts MBC concedes it is liable to pay to those entities.

The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

The costs of the Notice of Motion can be assessed forthwith.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61

Cases Citing This Decision

No citing cases yet.

Cases Cited

Cherry v Steele-Park [2017] NSWCA 295
Citation 1

…iated Newspapers Ltd v Bancks (1951) 83 CLR 322 Australian Securities & Investment Commission v Matthews (2009) ACSR 559 Cherry v Park-Steele [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017)…
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12
Citation 2

…Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Harvey v Phillips (1956) 95 CLR 235 Kilpatrick v Kotis (2004) 62 NSWLR 567 Koompa…
WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd [2016] NSWCA 297
Citation 3 (Para 23)

…ies to elucidate with greater precision, the commercial purpose or the subject matter of the contract: WIN Corporation Pty Ltd v Nine Network Pty Ltd [2016] NSWCA 297 at [57]. Evidence of the parties’ subjective intentions is not relevant to construction of a contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004…
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Citation 4 (Para 21)

…pose: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51].…
Newey v Westpac Banking Corporation [2014] NSWCA 319
Citation 5 (Para 1)

…must give effect to that language unless to do so would give the contract an absurd operation: Newey v Westpac Banking Corporation [2014] NSWCA 319 at [91]; and/or…
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Citation 6 (Para 21)

…ties by reference to the contractual text construed in the light of its context and purpose: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] and Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46]-[51].…
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liquidation) (No 2) [2011] NSWCA 331
Citation 7 (Para 2)

…ary meaning of the words because it regards the result as inconvenient or unjust: McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690 at [17].…
Hari Iyengar v Yogesh Chander Kashyap [2008] ACTSC 8
Citation 8 (Para 16)

…he parties, a Court should not ordinarily set aside that agreement unless it is void, voidable or liable to be set aside in equity: Harvey v Phillips (1956) 95 CLR 235.…
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
Citation 9 (Para 26)

…determines whether a term is “essential” so that any breach will justify termination: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [48].…
Kirkpatrick v Kotis [2005] NSWSC 178
Citation 10 (Para 19)

…he compromise of a dispute, it is permissible to take into account evidence of the surrounding circumstances known to the parties: Kilpatrick v Kotis (2004) 62 NSWLR 567 at [47] and [57] (Campbell J).…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
Citation 11 (Para 23)

…297 at [57]. Evidence of the parties’ subjective intentions is not relevant to construction of a contract: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. Evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptibl…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24
Citation 12 (Para 23)

…ible to contradict the language of the contract when it has a plain meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 per Mason J (Stephen and Wilson JJ agreeing).…
Associated Newspapers Ltd v Bancks [1951] HCA 24
Citation 13 (Para 25)

…d v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (Jordan CJ), cited with approval in the High Court on appeal and in Associated Newspapers Ltd v Bancks (1951) 83 CLR 322.…
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd [1938] HCA 66
Citation 14 (Para 25)

…t the promise is of such importance that the promisee would not have entered into the contract unless they were ensured of strict compliance with it: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 (Jordan CJ), cited with approval in the High Court on appeal and in Associated Newspapers Ltd v Bancks (1951) 83 CLR 322.…

Legislation Cited

Civil Procedure Act 2005 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Mosman Building and Constructions Pty Ltd v Banz Pty Ltd [2021] NSWDC 61
Hearing dates:	5 March 2021
Date of orders:	12 March 2021
Decision date:	12 March 2021
Jurisdiction:	Civil
Before:	Scotting DCJ
Decision:	The stay of enforcement of the judgment entered on 31 July 2020 is dissolved. The amount of $248,059.50 retained in the District Court Trust Account and any interest accrued thereon since 7 August 2020 be paid to the Plaintiff, by payment to its solicitor’s Trust Account. The plaintiff’s solicitor is to make payments from its Trust Account to the subcontractors set out in column 2 of the table appearing at [51] of the Affidavit of Kevin John Murphy affirmed 14 December 2020, being the amounts MBC concedes it is liable to pay to those entities. The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed. The costs of the Notice of Motion can be assessed forthwith.
Catchwords:	CIVIL PROCEDURE — Stay of enforcement of judgment
Legislation Cited:	Civil Procedure Act 2005 Building and Construction Industry Security of Payments Act 1999
Cases Cited:	Associated NewspapersLtd v Bancks (1951) 83 CLR 322 Australian Securities & Investment Commission v Matthews (2009) ACSR 559 Cherry v Park-Steele [2017] NSWCA 295 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Harvey v Phillips (1956) 95 CLR 235 Kilpatrick v Kotis (2004) 62 NSWLR 567 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 McGrath v Suresteps; Suresteps v HIH Overseas Holdings Ltd (in liq) (2011) 81 NSWLR 690 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Newey v Westpac Banking Corporation [2014] NSWCA 319 R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) FCR 389 S & M Motor Repairs Pty Ltd v Caltex Oil (Aust) Pty Ltd (1988) 12 NSWLR 358 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Tramways AdvertisingPty Ltdv Luna Park(NSW) Ltd (1938) 38 SR (NSW) 632 WIN Corporation Pty Ltd v Nine Network Pty Ltd [2016] NSWCA 297
Texts Cited:	Perry Herzfeld and Thomas Prince, Interpretation, Second Edition, Thomson Reuters, Sydney, 2020
Category:	Procedural rulings
Parties:	Mosman Building and Constructions Pty Ltd (Plaintiff) Banz Pty Ltd (Defendant)
Representation:	Counsel: J Hyde (Plaintiff) M Klooster (Defendant) Solicitors: Wilkinson Building & Construction Lawyers (Plaintiff) New South Lawyers (Defendant)
File Number(s):	2020/159136
Publication restriction:	None