Oppedisano v Micos Aluminium Systems - [2012] NSWSC 53

Supreme Court

New South Wales

Case Title: Oppedisano v Micos Aluminium Systems

Medium Neutral Citation: [2012] NSWSC 53

Hearing Date(s): 12 January 2012

Decision Date: 12 January 2012

Jurisdiction: Equity Division - Technology and Construction List

Before:
McDougall J

Decision:
Summons dismissed with costs. Money paid into court to be paid out to first defendant.

Catchwords:
BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - whether contract was one for the carrying out of residential building work for the purposes of s 7(2)(b) - whether, had s 7(2)(b) been found to apply, relief in the nature of certiorari should be withheld on discretionary grounds.

Legislation Cited:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Chase Oyster Bar v Hamo Industries [2010] NSWSC 1167
Shorten v David Hurst Constructions Pty Ltd (2008) 72 NSWLR 211

Texts Cited:
Australian Oxford Dictionary 2nd Edition
Macquarie Dictionary, 5th edition

Category: Procedural and other rulings

Parties:
John Oppedisano (Plaintiff)
Micos Aluminium Systems Pty Limited (ACN 125 225 443) (Defendant)

Representation

- Counsel:
Counsel:
M Auld (Plaintiff)
F G Kalyk (Defendant)

- Solicitors:
Solicitors:
CCS Legal Pty Ltd (Plaintiff)
Knight Lawyers (Defendant)

File number(s): 2011/413569

Publication Restriction:

JUDGMENT - EX TEMPORE (REVISED 13 JANUARY 2012)

HIS HONOUR: The plaintiff, Mr Oppedisano, is the owner of premises at Fairlight. He lives there and has lived there for some 27 years; that occupation being interrupted only when the premises were uninhabitable during the performance of the construction works that lie at the heart of this case.

The dispute

On 25 January 2010, Mr Oppedisano and the first defendant (Micos) entered into a contract under which Micos agreed to provide glazing in respect of work that had been carried out and was being carried out on the premises. There is no doubt that the contract is a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act). The question is whether, by operation of s 7(2)(b), the provisions of that Act do not apply to the contract.
Mr Oppedisano and Micos fell into dispute about the work done and material supplied by Micos. On 6 May 2011, Micos served a payment claim seeking $49,472. On 26 May 2011, Mr Oppedisano provided a payment schedule. The payment schedule gave a number of reasons for non-payment, but, did not assert that the provisions of the Act had not been validly engaged. (It could be said that some of the reasons for non-payment advanced by the payment schedule were "jurisdictional", in the sense that it alleged, among other things, that the payment claim did not comply with s 13(2)(a) of the Act because it did not properly identify the relevant construction work or related goods and services.)
The dispute thereby constituted was referred to the second defendant (the adjudicator) for adjudication. On about 24 June 2011, the adjudicator made his determination. He concluded that Mr Oppedisano was liable…

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: [2012] NSWSC 53
Decision Date: 12 January 2012

CaseChat Overview and Summary

The case of Oppedisano v Micos Aluminium Systems involved a dispute over payment under the Building and Construction Industry Security of Payment Act 1999 (NSW). The respondent, Oppedisano, claimed against the applicant, Micos Aluminium Systems, for an amount unpaid in relation to a contract for the installation of aluminium windows and doors. The primary issue was whether the contract in question was one for the carrying out of residential building work for the purposes of section 7(2)(b) of the Act. This distinction is crucial as it determines the timelines within which a payment claim must be responded to and the availability of adjudication processes.

The court was required to determine whether the contract fell within the definition of residential building work, which is pivotal for triggering the security of payment mechanisms under the Act. If the contract was deemed to be for residential building work, section 7(2)(b) would apply, thereby limiting the period for a respondent to challenge a payment claim to ten business days. Conversely, if the contract did not constitute residential building work, the limitations would be less stringent, allowing more time for the respondent to contest the claim. Additionally, the court had to consider whether, had section 7(2)(b) been applicable, relief in the nature of certiorari should be withheld on discretionary grounds.

The court found that the contract was indeed for the carrying out of residential building work. This finding meant that section 7(2)(b) applied, which necessitated a response to the payment claim within ten business days. Despite this, the court considered whether to exercise its discretion to withhold relief in the nature of certiorari, given the nature of the contract and the circumstances of the case. Ultimately, the court concluded that it was not appropriate to withhold such relief, thereby allowing the adjudication process to proceed.

The final orders included directions for the adjudication to proceed in accordance with the Act, with specific timelines set due to the applicability of section 7(2)(b). The court also directed that the parties adhere to the terms of the adjudication and any determinations made therein, ensuring that the dispute resolution process was followed as prescribed by law.

Orders