CITATION: Paul Michael Pty Ltd (subject to deed of company arrangement) v Urban Traders Pty Limited [2010] NSWSC 1246 HEARING DATE(S): 10 and 11 May 2010
JUDGMENT DATE :
29 October 2010JURISDICTION: Equity JUDGMENT OF: White J DECISION: Refer to paras 77-79 of reasons. CATCHWORDS: BUILDING AND CONSTRUCTION – application for stay of execution of judgments obtained pursuant to adjudications made under Building and Construction Industry Security of Payment Act 1999 and consequential orders – defendant owned land and engaged plaintiff as builder under construction agreement – both parties alleged breaches of construction agreement – plaintiff obtained judgments pursuant to adjudications and consequential orders – plaintiff subsequently subject to deed of company arrangement – defendant lodged proof of debt with deed administrator – proof of debt pending determination - BUILDING AND CONSTRUCTION – whether adjudications would operate practically as final determination of parties’ rights if judgments not stayed – effect of builder’s insolvency on operation of Act – where defendants may be prejudiced by inability to recover money paid under judgments if not stayed – whether serious question that defendant not indebted to plaintiff or debt discharged by set-off on ultimate determination of proof of debt – where defendant elected to take work out of plaintiff’s hands instead of terminating contract for plaintiff’s breach – where defendants subsequently repudiated contract – whether serious questions that defendants entitled to damages claimed in proof of debt – where no security proffered by defendants for outstanding judgments – plaintiff’s entitlement to enforce judgments in absence of security – moneys to be held on trust until proof of debt ultimately determined - PROCEDURE – where plaintiff obtained charging order under Civil Procedure Act 2005, s 106 against defendant’s land – whether charging order over land valid – whether Registrar-General empowered to register restraining order against land – orders to be discharged LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Building and Construction Industry Security of Payment Act 1999 (NSW)
Corporations Act 2001 (Cth)
Judgment Creditors’ Remedies Act 1901 (NSW)
Real Property Act 1900 (NSW)CATEGORY: Principal judgment CASES CITED: Brodin Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230
Veolia Water Solutions v Kruger Engineering (No 3) [2007] NSWSC 459
Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421
Quint v Robertson (1985) 3 NSWLR 398; DM & BP Wiskich Pty Ltd v Saadi (New South Wales Supreme Court, 16 February 1996, Bryson J, unreported)
Wentworth v Rogers [2004] NSWSC 1176PARTIES: Plaintiff: Paul Michael Pty Ltd (subject to deed of company arrangement)
1st Defendant: Urban Traders Pty Limited
2nd Defendant: J A Westaway & Son LimitedFILE NUMBER(S): SC 2009/297276 COUNSEL: Plaintiff: P Taylor SC with S Goldstein
Defendants: T Alexis SC with A GreinkeSOLICITORS: Plaintiff: CCS Legal Pty Ltd
Defendants: Cara Marasco & Co
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WHITE J
Friday, 29 October 2010
2009/297276 Paul Michael Pty Ltd (subject to deed of company arrangement) v Urban Traders Pty Limited…
Keep reading for free
Create a free CaseChat account to read Paul Michael Pty Ltd v Urban Traders Pty Ltd 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2010] NSWSC 1246
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the adjudications would operate practically as a final determination of the parties' rights if the judgments were not stayed, the effect of the plaintiff's insolvency on the operation of the Act, and whether the defendants were prejudiced by their inability to recover money paid under the judgments if not stayed. Additionally, the court considered whether there was a serious question that the defendants were not indebted to the plaintiff or that the debt was discharged by set-off on the ultimate determination of the proof of debt, and whether the defendants were entitled to damages claimed in the proof of debt. The court also examined whether the plaintiff was entitled to enforce the judgments in the absence of security, and whether the charging order over the defendant's land was valid.
In its decision, the court found that there were serious questions to be tried, particularly regarding the defendants' liability to pay the amounts claimed by the plaintiff. The court also considered the defendants' election to take the work out of the plaintiff's hands instead of terminating the contract for the plaintiff's breach, and the defendants' subsequent repudiation of the contract. The court held that the defendants were not entitled to damages claimed in the proof of debt, and that there was no security proffered by the defendants for the outstanding judgments. The court ordered that the moneys be held on trust until the proof of debt was ultimately determined. Furthermore, the court held that the charging order over the defendant's land was valid, and that the Registrar-General was empowered to register a restraining order against the land. Consequently, the orders to discharge were made.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.