Taylor Projects Group Pty Ltd v Brick Dept Pty Ltd - [2005] NSWSC 571

CITATION:
Taylor Projects Group Pty Limited v Brick Dept. Pty Limited & Ors [2005] NSWSC 571

HEARING DATE(S): 15/06/05

JUDGMENT DATE :

17 June 2005

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF:
Einstein J

DECISION:
The parties are required to bring in short minutes of order

CATCHWORDS:
Building and construction - Practice and procedure - Proceedings by head contractor against subcontractor seeking to impugn an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW) - Agreement to the effect that plaintiff would refrain from seeking injunctive relief to prevent determination registration and would pay funds into Court on the basis that in the event defendant succeeded in upholding adjudication determination, subject funds would be released to defendant forthwith upon it filing the adjudication certificate as a judgment in a court pursuant to the Act - District Court proceedings to determine the parties respective legal rights on final basis - Decision of Supreme Court that adjudication determination valid - Plaintiff opposes release to defendant of funds held by Supreme Court contending that defendant's financial position demonstrates substantial risk that it would be unable to repay funds in event plaintiff succeeded in establishing that the funds should not have been paid on final determination of the parties legal rights - Holding as to level of risk of prejudice to constitute a ground for refusal to pay out funds to defendant - Interim injunction said to be pursued in the absence of claim to final relief - Contract - Specific performance

LEGISLATION CITED:
Building and Construction Industry Security of Payment Act 1999 (NSW)
Industrial Relations Act.

CASES CITED:
Australian Broadcasting Corp v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Brodyn Pty Ltd v Davenport [2004] NSWCA 394
Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2005] NSWCA 49
Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344
Herscho v Expile Pty Limited [2004] NSWCA 468
Transgrid v Siemens Ltd [2004] NSWCA 395

PARTIES:
Taylor Projects Group Pty Limited ABN 25 067 428 344 (Plaintiff 55017/05, Defendant 3346/05)
Brick Dept. Pty Limited ABN 12 094 194 304 (First Defendant 55017/05, Plaintiff 3346/05)
John L O'Brien (Second Defendant)
Mediate Today Pty Limited ACN 065 563 760 (Third Defendant)

FILE NUMBER(S):
SC 55017/05; 3346/05

COUNSEL:
Mr MG Rudge SC (Plaintiff 50017/05)
Mr VF Kerr (First Defendant 50017/05))

SOLICITORS:
Avendra Singh Strati & Kam (Plaintiff 50017/05)
Carbon Legal (First Defendant 50017/05)

LOWER COURT JURISDICTION:

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

Einstein J

Friday 17 June 2005

55017/05 Taylor Projects Group Pty Limited v Brick Dept. Pty Limited & Ors

3346/05 Brick Dept. Pty Limited v Taylor Projects Group Pty Limited

JUDGMENT

The state of these proceedings

1 Proceedings 55017/05 ["the first proceedings"] were brought by Taylor Project Group Pty Ltd ["Taylor"] against Brick Department Pty Ltd ["Brick"] in the Technology and Construction List seeking to impugn an adjudication determination made under the Building and…

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.

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Details

Case: [2005] NSWSC 571
Decision Date: 17 June 2005

CaseChat Overview and Summary

The case of Taylor Projects Group Pty Ltd v Brick Dept Pty Ltd involved a dispute between a head contractor and a subcontractor over an adjudication determination made under the Building and Construction Industry Security of Payment Act 1999 (NSW). The subcontractor, Brick Dept, sought the release of funds held by the Supreme Court, which had been paid by the head contractor, Taylor Projects, pursuant to an agreement that the funds would be released if Brick Dept succeeded in upholding the adjudication determination. Taylor Projects opposed the release of the funds, arguing that Brick Dept's financial position demonstrated a substantial risk that it would be unable to repay the funds if Taylor Projects succeeded in establishing that the funds should not have been paid.

The legal issues before the court included whether the risk of prejudice to Taylor Projects constituted a ground for refusal to pay out the funds to Brick Dept and whether an interim injunction could be pursued in the absence of a claim to final relief. The court considered the nature of the risk and the circumstances under which the funds were held, as well as the terms of the agreement between the parties.

In its reasoning, the court held that the level of risk of prejudice necessary to constitute a ground for refusal to pay out the funds to the subcontractor must be substantial. The court found that the risk of prejudice in this case was not sufficient to warrant withholding the funds. The court also noted that an interim injunction could be pursued in the absence of a claim to final relief, provided that the circumstances warranted it. The court ultimately ordered that the funds held by the Supreme Court be released to the subcontractor, Brick Dept, and that Taylor Projects pay costs.

Orders