Romeo v TQM Design and Construct Pty Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Romeo v TQM Design and Construct Pty Limited [2013] NSWCA 72

Hearing dates:

3 April 2013

Decision date:

03 April 2013

Before:

Bathurst CJ at [1]; McColl JA at [16]; Ward JA at [17]

Decision:

1. Appeal allowed.

2. The orders made by the primary judge in paras 1 - 5 of his Honour's orders should be set aside and in lieu thereof the matter should be remitted to the District Court for hearing on the merits.

3. The respondents should pay the appellants' costs of the appeal and the costs of the application for summary judgment in the Court below.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - summary judgment -defence struck out - whether pleaded defences could arguably be made out.

Legislation Cited:

Building and Construction Industry Security of Payments Act 1999, s 7

Cases Cited:

Commissioner of Taxation v Sara Lee Household & Body Care (Aust) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520

Category:

Principal judgment

Parties:

Anna Maria Romeo (First Appellant)
Giuseppe Romeo (Second Appellant)
TQM Design and Construct Pty Limited (First Respondent)
Maroun Taouk (Second Respondent)

Representation:

Solicitors:
Proctor Phair Lawyers (Appellants)
Magna Carta Lawyers (Respondents - submitting appearance)

File Number(s):

2010/341969

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9101

Citation:

[2011] NSWDC 143

Date of Decision:

2011-09-28 00:00:00

Before:

Levy SC DCJ

File Number(s):

2010/341969

Judgment

(Ex tempore - revised 16 April 2013)

1. BATHURST CJ: This is an appeal from the judgment of Judge Levy SC of the District Court of New South Wales, in which his Honour entered summary judgment in favour of the respondents against the appellants in an amount of $159,176.88. The judgment was entered as a consequence of the primary judge striking out a defence filed by the appellants on 27 June 2011.

1. The proceedings arose out of building work which the respondents had agreed to undertake on behalf of the appellants. The original building contract was entered into on 12 May 2005 and it was not an issue between the parties that it was a contract to which the Building and Construction Industry Security of Payments Act 1999 ("the Act") applied.

1. Disputes arose between the parties as to the work involved and the liability to pay and, as a consequence, the parties entered into a deed of settlement and release dated 23 November 2007. Relevantly, the deed provided as follows:

"2.1 In consideration of TQM/Taouk entering into this Deed, The Romeos jointly and severally agree to make the following payments (without admission as to liability) to TQM:

(a) $137,500.00 (inclusive of GST)…