Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Render Design (Aus) Pty Ltd v Sky Stand Plastering Pty Ltd [2014] NSWDC 317
Hearing dates:9 May 2014
Date of orders: 09 May 2014
Decision date: 09 May 2014
Jurisdiction:Civil
Before: P Taylor SC DCJ
Decision:

(1)Defendant’s notice of motion filed 28 April 2014 is dismissed.
(2)Defendant pay the costs of the notice of motion.

Catchwords: CONTRACT – building work – owner claims for damages for defective work – builder has registered judgments resulting from adjudication certificates under security of payments legislation – builder seeks stay of proceedings until satisfaction of judgments – entitlement of party to bring proceedings for breach of contract irrespective of adjudication proceedings – not proceedings to set aside adjudication – no entitlement to stay
Legislation Cited: Building and Construction Industry Security of Payment Act 1999, s 25, s 32
Civil Procedure Act 2005, s 67
Cases Cited: Bruce Maples v Siteberg [2012] NSWSC 435
Grant Constructions Pty Limited v Claron Constructions Pty Limited [2006] NSWSC 369
Jem Developments Pty Ltd and Anor v Hansen Yuncken Pty Ltd [2006] NSWSC 1087
Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152
Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169
Texts Cited: Ritchie’s Uniform Civil Procedure NSW
Category:Procedural and other rulings
Parties: Render Design (Australia) Pty Ltd (plaintiff)
Sky Stand Plastering Pty Ltd (defendant)
Representation:

Counsel:
Mr M Auld (plaintiff)
Mr J Lee (defendant)

Solicitors:
Knight Lawyers (plaintiff)
Ren Zhou Lawyers(defendant)
File Number(s):2013/375479
Publication restriction:None

Judgment

  1. The defendant seeks a stay of the present proceedings under s 67 of the Civil Procedure Act 2005 until the plaintiff has paid into court the amounts, the subject of two judgments in favour of the defendant, resulting from the filing of adjudication certificates.

  2. The plaintiff, Render Design (Australia) Pty Ltd (“Render Design”), commenced proceedings against the defendant, Sky Stand Plastering Pty Ltd (“Sky Stand”), for damages for breach of a building contract. The issues to be canvassed in these proceedings are said to be the same as those canvassed in adjudication determinations made in favour of Sky Stand. Sky Stand has filed adjudication certificates and obtained judgments pursuant to s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (“the Act”). Although Sky Stand has taken some enforcement procedures, the bulk of the monies owing under the judgments remain outstanding. Sky Stand seeks an order staying the proceedings until an amount equal to the sum of the judgments is paid into court.

  3. Sky Stand relies on s 25(4) of the Act and the decision of Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169. Section 25(4) provides:

“(4) If the respondent commences proceedings to have the judgment set aside, the respondent:

(a) is not, in those proceedings, entitled:

(i) to bring any cross-claim against the claimant, or

(ii) to raise any defence in relation to matters arising under the construction contract, or

(iii) to challenge the adjudicator’s determination,…

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Details
Case
[2014] NSWDC 317
Decision Date

CaseChat Overview and Summary

Render Design (Aus) Pty Ltd brought proceedings against Sky Stand Plastering Pty Ltd in the Supreme Court of Queensland, claiming damages for defective building work. Render Design sought damages for the cost of rectifying the defects, as well as other losses incurred due to the builder's failure to perform the work to an acceptable standard. The builder, in response, had registered judgments from adjudication certificates under the security of payments legislation, and sought to stay the proceedings until the judgments were satisfied.

The court needed to determine whether the builder's registration of the judgments entitled it to a stay of the proceedings, and whether the owner's right to bring proceedings for breach of contract was affected by the adjudication process. The court considered whether the adjudication process was a prerequisite to the owner bringing proceedings for damages and whether the owner was required to pursue the adjudication process before bringing proceedings in the court.

The court found that the registration of the adjudication certificates did not entitle the builder to a stay of the proceedings. The court held that the adjudication process was not a prerequisite to the owner bringing proceedings for damages, and that the owner was not required to pursue the adjudication process before bringing proceedings in the court. The court further held that the proceedings were not an attempt to set aside the adjudication, but rather a separate action for damages for breach of contract. Accordingly, the court dismissed the builder's notice of motion and ordered the builder to pay the costs of the notice of motion.

Orders

Orders of the court

(1)Defendant’s notice of motion filed 28 April 2014 is dismissed.

(2)Defendant pay the costs of the notice of motion.

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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