Reported Decision: 72 NSWLR 211
New South Wales
Court of Appeal
CITATION: Shorten v David Hurst Constructions Pty Ltd (ACN 107 042 688) [2008] NSWCA 134 HEARING DATE(S): 3/6/08
JUDGMENT DATE:
18 June 2008JUDGMENT OF: Hodgson JA at 1; Basten JA at 2; Bell JA at 35 DECISION: Appeal dismissed with costs CATCHWORDS: CONTRACTS – contract for construction of residential units, one of which intended to be developer’s residence – whether contract excluded under s 7(2)(b) from the operation of Building and Construction Industry Security of Payment Act 1999 (NSW) - STATUTORY INTERPRETATION – use of extrinsic material - Interpretation Act 1987 (NSW) ss 33, 34 LEGISLATION CITED: Acts Interpretation Act 1901 (Cth), s 15AB
Building and Construction Industry Security of Payment Act 1999 (NSW), s 7(2)(b)
Home Building Act 1989 (NSW), s 3(1)
Income Tax Assessment Act 1936-1970 (Cth)
Interpretation Act 1987 (NSW)CATEGORY: Principal judgment CASES CITED: Acclaim Building Management Pty Ltd v Loewenthal [2006] NSWDC 29
Atlen Pty Ltd v Builders Insurers’ Guarantee Corporation [2005] NSWCA 105
Byrne v Australian Airlines Limited (1995) 185 CLR 410
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Consolidated Constructions Pty Ltd v The Satellite Group (Harold Park) Pty Ltd [2000] NSWSC 1235
Federal Commissioner of Taxation v Faichney (1972) 129 CLR 38
Harrison v Melhem [2008] NSWCA 67
HIH Casualty and General Insurance Ltd v Jones [2000] NSWSC 359
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Marshall v Director-General, Department of Transport [2001] HCA 37; 205 CLR 603
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14; 218 CLR 273
Owen v South Australia (1996) 66 SASR 251
Pepper v Hart [1993] AC 593
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476
Re Bolton; Ex parte Beane (1987) 162 CLR 514
R v Young [1999] NSWCCA 166; 46 NSWLR 681
Wacando v The Commonwealth (1981) 148 CLR 1
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 82 ALJR 489TEXTS CITED: Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, 2006) PARTIES: Richard William Shorten (1st Appellant)
Lorraine Shorten (2nd Appellant)
David Hurst Constructions Pty Ltd (ACN 107 042 688) (Respondent)FILE NUMBER(S): CA 40339/08 COUNSEL: Mr M Christie / Mr C Carter (Appellants)
Mr D C Price (Respondent)SOLICITORS: Massey Bailey (Appellants)
The Builders' Lawyers (Respondent)LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 55090/07 LOWER COURT JUDICIAL OFFICER: Nicholas J LOWER COURT DATE OF DECISION: 4/3/08
CA 40039/08
SC 55090/07Wednesday 18 June 2008HODGSON JA
BASTEN JA
BELL JA
Richard William Shorten v David Hurst Constructions Pty Ltd
Judgment
1 HODGSON JA: I agree with Bell JA.
2 BASTEN JA: I agree with Bell JA that the appeal in this matter should be dismissed with costs. Her Honour has set out the background to the appeal.
3 The outcome of the appeal turns upon the operation of s 7(2)(b)…
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- AGLC
- Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
- Case
- [2008] NSWCA 134
- Decision Date
CaseChat Overview and Summary
The appeal concerned a contract for the construction of residential units, one of which was intended to be the developer's residence. The primary dispute revolved around whether this contract was excluded from the operation of the *Building and Construction Industry Security of Payment Act 1999* (NSW) by virtue of section 7(2)(b) of that Act. The matter was heard in the Court of Appeal of New South Wales.
The central legal issue before the court was the proper interpretation of section 7(2)(b) of the *Building and Construction Industry Security of Payment Act 1999* (NSW), which provides for certain contracts to be excluded from the Act's provisions. Specifically, the court had to determine whether the contract in question, involving the construction of residential units where one was intended for the developer's own use, fell within the exclusion. This required the court to consider the scope and application of the exclusion provision in the context of residential construction.
The court's reasoning involved a detailed examination of the statutory language of section 7(2)(b) and its purpose. The judges considered the legislative intent behind the exclusion, particularly in relation to owner-occupier situations. In interpreting the provision, the court also had regard to the principles of statutory interpretation, including the permissible use of extrinsic material under sections 33 and 34 of the *Interpretation Act 1987* (NSW) to aid in understanding the meaning of the provision. The court concluded that the contract did not fall within the exclusion.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The central legal issue before the court was the proper interpretation of section 7(2)(b) of the *Building and Construction Industry Security of Payment Act 1999* (NSW), which provides for certain contracts to be excluded from the Act's provisions. Specifically, the court had to determine whether the contract in question, involving the construction of residential units where one was intended for the developer's own use, fell within the exclusion. This required the court to consider the scope and application of the exclusion provision in the context of residential construction.
The court's reasoning involved a detailed examination of the statutory language of section 7(2)(b) and its purpose. The judges considered the legislative intent behind the exclusion, particularly in relation to owner-occupier situations. In interpreting the provision, the court also had regard to the principles of statutory interpretation, including the permissible use of extrinsic material under sections 33 and 34 of the *Interpretation Act 1987* (NSW) to aid in understanding the meaning of the provision. The court concluded that the contract did not fall within the exclusion.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs
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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