Nigro v EVS Group Pty Limited - [2012] NSWSC 1545

Supreme Court

New South Wales

Medium Neutral Citation: Nigro v EVS Group Pty Limited [2012] NSWSC 1545
Hearing dates: 2 April 2012
Decision date: 14 December 2012
Before: Hislop J
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.
3. Plaintiff to pay the defendant's costs of the appeal.

Catchwords: Contract - Building and Construction Industry (Security of Payment) Act 1999 - entitlement of non-contractual party to recover moneys paid pursuant to a judgment filed under s 25 of the Act.
Legislation Cited: Local Court Act 2007
Building and Construction Industry (Security of Payments) Act 1999
Cases Cited: Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited (2010) 78 NSWLR 393
Dualcorp Pty Limited v Remo Constructions Pty Limited [2009] NSWCA 69, (2009) 74 NSWLR 190
Laws Holdings Pty Limited v Short (1972) 46 ALJR 563
Grave v Blazevic Holdings Pty Limited [2010] NSWCA 324, 79 NSWLR 132
Brodyn Pty Limited v Davenport [2004] NSWCA 394, (2004) 61 NSWLR 421
Texts Cited: Precedents of Pleadings, Bullen, Leake and Jacobs
Category: Principal judgment
Parties: Remolo Niko Nigro (Plaintiff)
EVS Group Australia Pty Limited (Defendant)
Representation: B Bradley (Plaintiff)
J Hyde (Defendant)
CCS Legal (Plaintiff)
Wilkinson Building and Construction Lawyers (Defendant)

File Number(s): 2011/324420

Judgment

Introduction

This is an application for leave to appeal from a decision of the Local Court pursuant to s 40(2) of the Local Court Act 2007. It concerns the application of the Building and Construction Industry (Security of Payments) Act 1999 ("the Act").

In Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited (2010) 78 NSWLR 393 Spigelman CJ said at [4]:

"The Act creates a statutory right to progress payments (s 8 and s 9) which cannot be modified by a contract (s 34). Part 3 of the Act sets out a procedure for recovering such payments that, save for the necessity that a builder initiate the procedure by making a claim (s 13), makes express statutory provision for each step in the dispute resolution process. This extends to provision for an 'adjudicator's determination' (s 22), which is required to be paid (s 23), and the issuance of an adjudication certificate by an authorised nominating authority (s 24), which certificate may be filed in court as a judgment for a debt (s 25)."

Section 3 identifies the objects of the Act whilst s 32 provides for the effect of Pt 3 of the Act on civil proceedings.

The procedure is plainly one designed to facilitate the speedy making and payment of progress claims and, where necessary, the speedy resolution of any disputes - Dualcorp Pty Limited v Remo Constructions Pty Limited [2009] NSWCA 69, (2009) 74 NSWLR 190 at [29].

Background

Remax Developments Pty Limited purchased a site for development at Parramatta Road Homebush. It engaged Remax Group Pty Limited to construct residential units on the site. The plaintiff was a director of each company.

The defendant contracted to provide security personnel services on the site. There was a question…

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.

Keep reading for free

Create a free CaseChat account to read Nigro v EVS Group Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 1545
Decision Date: 14 December 2012

CaseChat Overview and Summary

Nigro v EVS Group Pty Limited was a case before the Federal Court of Australia that dealt with the rights of a non-contractual party to recover monies paid under a judgment filed under the Building and Construction Industry (Security of Payment) Act 1999. Nigro, the claimant, sought to recover monies paid to EVS Group Pty Limited, the defendant, as a result of a final judgment in a separate proceeding. The dispute centred around the interpretation of the Act and whether a non-contractual party could recover payments made under a judgment.

The primary legal issue the court had to address was whether a party that was not a party to the original building and construction contract could recover payments made under a judgment under section 25 of the Act. The court was required to interpret the relevant provisions of the Act and determine if such a recovery was permissible. This involved examining the purpose and scope of the Act, as well as the relationship between the parties involved in the original contract and those affected by subsequent judgments.

The court found that the Building and Construction Industry (Security of Payment) Act 1999 was intended to provide a mechanism for prompt payment in the building and construction industry, and that it did not extend to allowing non-contractual parties to recover payments made under a judgment. The court held that the Act was limited to disputes between parties to a building and construction contract, and that it did not provide a mechanism for non-contractual parties to seek recovery of payments made under a judgment. The court's interpretation of the Act was based on its purpose and the language used in the relevant provisions. As a result, the claimant's application for recovery of the monies paid under the judgment was dismissed.

The court's decision clarified the scope of the Building and Construction Industry (Security of Payment) Act 1999 and confirmed that non-contractual parties do not have the right to recover payments made under a judgment. The court's interpretation of the Act was based on its purpose and the language used in the relevant provisions, and it provided guidance to parties involved in building and construction disputes. The outcome of the case ensures that the Act is applied in a manner consistent with its intended purpose, and it provides certainty to parties involved in building and construction contracts.

Orders