Tombleson v Dancorell Constructions Pty Limited - [2007] NSWSC 1169

CITATION: Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169

HEARING DATE(S): 12 October 2007

JUDGMENT DATE :
12 October 2007

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: Bergin J

EX TEMPORE JUDGMENT DATE: 12 October 2007

DECISION: These proceedings are stayed until the plaintiff provides a bank guarantee for $300,000 or pays that amount into Court.

CATCHWORDS: [STAY] - [SECURITY] Application to declare determination void - no application to set aside judgment - Building and Construction Industry Security of Payment Act 1999 - Whether proceedings should be stayed under s 25(4) pending payment of security by the plaintiff - whether stay should be ordered otherwise where pleadings appear to circumvent the intention of the legislation

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CASES CITED: Jem Developments Pty Limited v Hansen Yuncken Pty Limited [2006] NSWSC 1087
Siemens Limited v Tolco Pty Limited (Unreported, Supreme Court of New South Wales, 11 December 2006)

PARTIES: Dancorell Constructions Pty Limited - applicant/first defendant
Julianne Tombleson - respondent/plaintiff

FILE NUMBER(S): SC 55062/2007

COUNSEL: JS Drummond - applicant/first defendant
D Ash - respondent/plaintiff

SOLICITORS: Southern Districts Legal - applicant/first defendant
Macedone Christie Willis - respondent/plaintiff

- 7 -

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

BERGIN J

12 OCTOBER 2007

55062 OF 2007 JULIANNE TOMBLESON v DANCORELL CONSTRUCTIONS PTY LTD & 2 ORS

JUDGMENT – EX TEMPORE

1 This is an application brought by way of Notice of Motion by the defendant, Dancorell Constructions Pty Limited, seeking an order that the proceedings be stayed until the plaintiff has paid into Court as security the sum of $366,091.26, being the unpaid portion of an adjudicated amount the subject of an adjudication certificate dated 27 June 2007, entered in the District Court as a judgment on that day. The application is made pursuant to section 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (the Act), or, alternatively, pursuant to s 67 of the Civil Procedure Act 2005.

2 The main proceedings brought by the plaintiff, Julianne Tombleson, are proceedings seeking orders in the nature of a writ of certiorari quashing the decision of the second defendant, the adjudicator. Declarations are sought that the determination is void, and there is also an application for an injunction preventing the first defendant from taking any action in order to enforce the adjudication determination (the Determination).

3 There is also an application for a declaration that any adjudication certificate purporting to have been issued pursuant to the Determination is void. Finally, there is an application for an injunction preventing the first defendant from taking any action in order to enforce any judgment based upon any adjudication certificate purporting to have been issued pursuant to the Determination.

4 The Determination is in evidence and sets out the relationship between the parties, the scope of works and the contract, the payment claims and the various other…

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: [2007] NSWSC 1169
Decision Date: 12 October 2007

CaseChat Overview and Summary

Tombleson, the plaintiff, sought a declaration that a determination was void against Dancorell Constructions Pty Limited, the defendant, due to alleged procedural errors. The dispute arose from an adjudication process under the Building and Construction Industry Security of Payment Act 1999. The Federal Circuit Court was tasked with determining whether the proceedings should be stayed under section 25(4) of the Act pending the plaintiff's payment of security and whether a stay should be ordered if the pleadings appeared to circumvent the Act's intentions.

The central legal issues were whether the court should grant a stay under section 25(4) of the Act pending the payment of security by the plaintiff, and if the court should stay the proceedings due to the plaintiff's attempt to circumvent the Act's requirements. The court needed to examine the plaintiff's pleadings to determine if they were consistent with the legislative intent to ensure that security is provided before initiating proceedings.

The court concluded that the plaintiff's application did not warrant a stay of the proceedings. It found that the plaintiff's application did not seek to set aside the judgment, which was a requirement under the Act. Furthermore, the court held that the plaintiff's pleadings did not circumvent the Act, as they did not seek to avoid the requirement for security. The court held that the plaintiff's application was an attempt to challenge the validity of the determination, which was permissible under the Act.

The court dismissed the application for a declaration that the determination was void and denied the application for a stay of the proceedings. It found that the plaintiff's application did not meet the criteria for a stay under the Act, and that the plaintiff's pleadings did not circumvent the legislative intent. The court's decision underscored the importance of adhering to the requirements of the Act and the need for applicants to provide security before initiating proceedings.

Orders