The Owners - Strata Plan 74635 v Buildcorp Group Pty Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

The Owners - Strata Plan 74635 v Buildcorp Group Pty Limited [2013] NSWCA 40

Hearing dates:

25 February 2013

Decision date:

25 February 2013

Before:

Allsop P at [1], [18]
Ward JA at [17]

Decision:

Application for leave to appeal dismissed with costs.

[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:

PRACTICE AND PROCEDURE - no question of principle

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005, ss56 - 60

Cases Cited:

The Owners Strata Plan 56587 v Consolidated Quality Projects [2009] NSWSC 1476

Category:

Principal judgment

Parties:

The Owners - Strata Plan No 74635 (Applicant)
Buildcorp Group Pty Limited CAN 091 336 168 (Respondent)

Representation:

Counsel:
D E Grieve QC and D Hand (Applicant)
M Ashhurst SC and M Gunning (Respondent)
Makinson & d'Apice Lawyers
BCP Lawyers & Consultants (Respondent)

File Number(s):

2012/397122

 Decision under appeal 

Date of Decision:

2012-12-14 00:00:00

Before:

Ashford DCJ

File Number(s):

2012/186930

Judgment

1. ALLSOP P: This is an application for leave to appeal from orders made by a District Court Judge refusing the defendants to the proceedings below (the applicants to the proceedings here) an amendment to a defence in the District Court.

1. A number of issues were run in the District Court, most particularly what I will refer to as the question of service and the question of estoppel or waiver. The background to the case is that the applicants, whom I will refer to as the Owners, they being Owners of Strata Plan No 74635, entered a building contract with Buildcorp Group Pty Limited. The dispute between the parties involves disputes over entitlements to payments claimed by Buildcorp. Those competing views then find their place in the operation of the Building and Construction Industry Security of Payment Act1999 (NSW) (the "Act").

1. Buildcorp delivered to a Mr Kokolis, the engineer to the works, a payment claim under the Act on 29 February 2012. The ten business days for the serving of a schedule in answer expired on or about 14 March 2012. No such payment schedule in response was served. The estoppel argument was directed below to what occurred thereafter from 16 March. There is no need to deal with this in this application. Mr Grieve QC for the Owners does not press the application for leave to appeal in relation to the estoppel or waiver point.

1. That leaves what the parties debated before us as to the service point. It is said here, as it was said to the primary judge, that there was a point to be argued that the…