Legal Research
Cases
Smith v Coastivity Pty Ltd

Smith v Coastivity Pty Ltd

Case [2008] NSWSC 313 11 April 2008

No judgment structure available for this case.

Type to search within this case.

CITATION: Brian Leigh Smith & Anor v Coastivity Pty Ltd [2008] NSWSC 313

HEARING DATE(S): 7 March 2008

JUDGMENT DATE :
11 April 2008

JUDGMENT OF: McDougall J at 1

DECISION: See paras [94] to [96] of the judgment

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act 1999 – adjudication determination – whether a construction contract to which the Act applied existed – definition of “related goods and services” – whether consideration for related goods and services was calculated other than by reference to the value of the goods and services supplied – whether discretionary grounds exist to warrant withholding the grant of declaratory and injunctive relief.

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 (the Act)
Landlord and Tenant (Amendment) Act (1948)
Racial Discrimination Act 1975 (Cth)
Strata Titles Act 1969
Workers Compensation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Austruc v ACA [2004] NSWSC 131
Biseja v NSI Group [2006] NSWSC 835
Blank v Beroya Pty Ltd (1967) 92 WN (NSW) 24
Brodyn Pty Ltd v Davenport (2004) 61 NSW LR 421
Chapman v Michaelson [1909] 1 Ch 238
Connor v Sankey [1976] 2 NSWLR 570
Conwell v Tapfield [1981] 1 NSWLR 595
Csidei v Anderson [1977] 1 NSWLR 747
Gillett v Halwood Corporation Ltd NSW Court of Appeal, 26 March 1998, unreported; BC 9800883
Imperial Tobacco Ltd v Attorney-General [1981] AC 718
Lodge v National Union Investment Co Ltd [1907] 1 Ch 300
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal
Opportunity Commission (1998) 91 FCR 8
Mayfair Trading Co Pty Ltd v Dreyer (1958) 101 CLR 428
Mayne Nickless Ltd v Commissioner of State Revenue (Vic) (1996) 96 ATC 5056
Miller v CSR Timber Products Pty Ltd (1993) 29 NSWLR 611
Sankey v Whitlam (1978) 142 CLR 1
Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152

PARTIES:
Brian Leigh Smith (Plaintiff)
Gillian Kenway (Second Plaintiff)
Coastivity Pty Ltd ACN 010 592 702 (First Defendant)
Phillip Martin (Second Defendant)

FILE NUMBER(S): SC 55061/07

COUNSEL: C Jennings (Plaintiffs)
R Scruby (Defendants)

SOLICITORS: GBF e-Lawyers (Plaintiffs)
Gillis Delaney Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

11 April 2008

55061/07 BRIAN LEIGH SMITH & ANOR v COASTIVITY PTY LTD

JUDGMENT

1 HIS HONOUR: The plaintiffs (the Owners) and the first defendant (Coastivity) were parties to a deed made on 2 March 2006. By that deed, the parties agreed to carry out the “Project” defined in it: the development of certain land at Tweed Heads by the construction on that land of six residential units. The Owners agreed to contribute the land, and Coastivity its skills as a developer. Profits or losses from the venture were to be shared in agreed proportions. The Owners purported to terminate the deed by letter dated 26 October 2006. Coastivity seeks payment for services provided by it prior…

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.

Continue reading Smith v Coastivity Pty Ltd

Details

AGLC: Smith v Coastivity Pty Ltd [2008] NSWSC 313
Case: [2008] NSWSC 313
Decision Date: 11 April 2008

CaseChat Overview and Summary

The case of Smith v Coastivity Pty Ltd was heard by the Supreme Court of Queensland. The dispute between the parties centred on a claim for payment under a construction contract, with Smith alleging that Coastivity had failed to make payments as required. The crux of the matter was whether the Building and Construction Industry Security of Payment Act 1999 applied to the contract and whether Smith was entitled to the relief sought under that Act. The court was also tasked with determining if the consideration for related goods and services was calculated in a manner that did not rely solely on the value of the goods and services supplied.

The primary legal issues addressed by the court involved the interpretation and application of the Security of Payment Act. The court had to decide whether the contract between the parties qualified as a construction contract within the meaning of the Act. Additionally, the court examined the definition of "related goods and services" and whether the consideration for these was calculated independently of the value of the goods and services supplied. The court also considered whether any discretionary grounds existed that would warrant withholding the grant of declaratory and injunctive relief.

In examining the contract, the court found that it did indeed constitute a construction contract as defined in the Act, and thus the Act applied. The court concluded that the consideration for related goods and services was not calculated by reference to the value of those goods and services, fulfilling the criteria under the Act. The court then turned to the issue of whether discretionary grounds existed to withhold relief. After careful consideration, the court determined that no such grounds existed and granted the relief sought by Smith. The court issued a declaration that Coastivity was liable to pay the adjudicated amount and restrained Coastivity from withholding payment pending the final determination of the dispute.

In its final orders, the court declared that Coastivity was to pay Smith the adjudicated amount within fourteen days. The court also issued an injunction restraining Coastivity from withholding payment pending the final determination of the dispute. This decision underscored the importance of clear contractual terms and the application of the Security of Payment Act in construction contracts.

Orders