TQM Design and Construct Pty Ltd v Romeo - [2011] NSWDC 143

District Court

New South Wales

Medium Neutral Citation: TQM Design & Construct Pty Ltd & Anor v Romeo & Anor [2011] NSWDC 143
Hearing dates: 27 & 28 September 2011
Decision date: 28 September 2011
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.The defence filed by the defendants on 27 June 2011 is struck out;
2.Summary judgment is entered in favour of the first and second plaintiffs against the first and second defendants in the sum of $137,500 in accordance with Uniform Civil Procedure Rules Pt 13 r 13.1 and s 14(4) and s 15 of the BCISP Act ;
3.In accordance with s 100 and s 101 of the Civil Procedure Act 2005, pre-judgment interest o n the amount of $137,500 between 1 March 2010 and 27 September 2011 is assessed in the sum of $21,676.88 ;
4.The total judgment in favour of the plaintiffs against each defendant, including pre-judgment interest, is in the sum of $159,176.88 ;
5.The first and second defendants are to pay the costs of the plaintiffs in respect of the motion filed on 3 August 2011, and of the proceedings, on the ordinary basis unless otherwise entitled;
6.Liberty to apply on 7 days notice if further orders are required .
[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: Building Contracts - whether plaintiffs have established entitlement to summary judgment pursuant to the provisions of the Building and Construction Industry Security of Payments Act 1999
Legislation Cited: Building and Construction Industry Security of Payments Act 1999, s 5, s 7, s 11, s 13, s 14, s 15, s 16, s 31
Civil Procedure Act 2005, s 100, s 101
Evidence Act 1995, s 160
Home Building Act 1989
Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited: Bittania Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9
Downer EDI Works Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWCA 78
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Randhawa v Serrato [2009] NSWSC 170
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Tsoukatos v Mustafa [2007] NSWSC 614
Texts Cited: Hansard, NSW Legislative Assembly, 29 June 1999, Second Reading Speech
Category: Principal judgment
Parties: TQM Design & Construct Pty Ltd (First plaintiff/Applicant)
Maroun Taouk (Second plaintiff)
Anna Maria Romeo (First defendant/ Respondent)
Giuseppe Romeo (Second defendant/ Respondent)
Representation: Ms D Dinnen (Plaintiffs/Applicants)
Mr D Allen (Defendants/Respondents)
Magna Carta Lawyers (Plaintiffs/Applicants)
Proctor Phair Lawyers (Defendants/ Respondents)

File Number(s): 2010/341969

Judgment

Notice of motion

This is a notice of motion filed by…

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: [2011] NSWDC 143
Decision Date: 28 September 2011

CaseChat Overview and Summary

TQM Design and Construct Pty Ltd and another plaintiff, TQM Constructions Pty Ltd, filed a motion seeking summary judgment against Romeo Constructions Pty Ltd and another defendant, Romeo, in the Supreme Court of New South Wales. The plaintiffs claimed an amount of $137,500, which was allegedly owed under a building contract. The defendants contested the claim, arguing that the plaintiffs were not entitled to the money. The plaintiffs applied for summary judgment under the Building and Construction Industry Security of Payments Act 1999, claiming that the defendants had failed to object to the payment claims within the required time frame.

The court needed to determine whether the plaintiffs had established their entitlement to summary judgment under the provisions of the Act. The court had to consider whether the defendants had failed to object to the payment claims within the requisite time frame, and if so, whether the plaintiffs were entitled to summary judgment. The court also needed to assess whether the defendants' defence was valid and whether there were any other matters that needed to be considered before granting summary judgment.

The court found that the defendants had failed to object to the payment claims within the requisite time frame, and that the plaintiffs had established their entitlement to summary judgment. The court held that the defendants' defence was invalid, as it did not address the substantive issues raised by the plaintiffs. The court also noted that there were no other matters that needed to be considered before granting summary judgment. Consequently, the court granted summary judgment in favour of the plaintiffs, awarding them the sum of $137,500, along with pre-judgment interest of $21,676.88, and ordered the defendants to pay the plaintiffs' costs.

The court ordered that the defence filed by the defendants be struck out, and that summary judgment be entered in favour of the plaintiffs against the defendants in the sum of $137,500. The court also assessed pre-judgment interest on the amount of $137,500 between 1 March 2010 and 27 September 2011, in the sum of $21,676.88. The total judgment in favour of the plaintiffs against each defendant, including pre-judgment interest, was in the sum of $159,176.88. The court further ordered that the defendants pay the plaintiffs' costs of the motion and proceedings, on the ordinary basis unless otherwise entitled. The court granted liberty to apply on seven days notice if further orders were required.

Orders

Orders of the court

1.The defence filed by the defendants on 27 June 2011 is struck out;

2.Summary judgment is entered in favour of the first and second plaintiffs against the first and second defendants in the sum of $137,500 in accordance with Uniform Civil Procedure Rules Pt 13 r 13.1 and s 14(4) and s 15 of the BCISP Act ;

3.In accordance with s 100 and s 101 of the Civil Procedure Act 2005, pre-judgment interest o n the amount of $137,500 between 1 March 2010 and 27 September 2011 is assessed in the sum of $21,676.88 ;

4.The total judgment in favour of the plaintiffs against each defendant, including pre-judgment interest, is in the sum of $159,176.88 ;

5.The first and second defendants are to pay the costs of the plaintiffs in respect of the motion filed on 3 August 2011, and of the proceedings, on the ordinary basis unless otherwise entitled;

6.Liberty to apply on 7 days notice if further orders are required .

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	TQM Design & Construct Pty Ltd & Anor v Romeo & Anor [2011] NSWDC 143
Hearing dates:	27 & 28 September 2011
Decision date:	28 September 2011
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.The defence filed by the defendants on 27 June 2011 is struck out; 2.Summary judgment is entered in favour of the first and second plaintiffs against the first and second defendants in the sum of $137,500 in accordance with Uniform Civil Procedure Rules Pt 13 r 13.1 and s 14(4) and s 15 of the BCISP Act ; 3.In accordance with s 100 and s 101 of the Civil Procedure Act 2005, pre-judgment interest o n the amount of $137,500 between 1 March 2010 and 27 September 2011 is assessed in the sum of $21,676.88 ; 4.The total judgment in favour of the plaintiffs against each defendant, including pre-judgment interest, is in the sum of $159,176.88 ; 5.The first and second defendants are to pay the costs of the plaintiffs in respect of the motion filed on 3 August 2011, and of the proceedings, on the ordinary basis unless otherwise entitled; 6.Liberty to apply on 7 days notice if further orders are required . [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:	Building Contracts - whether plaintiffs have established entitlement to summary judgment pursuant to the provisions of the Building and Construction Industry Security of Payments Act 1999
Legislation Cited:	Building and Construction Industry Security of Payments Act 1999, s 5, s 7, s 11, s 13, s 14, s 15, s 16, s 31 Civil Procedure Act 2005, s 100, s 101 Evidence Act 1995, s 160 Home Building Act 1989 Uniform Civil Procedure Rules 2005, r 14.28
Cases Cited:	Bittania Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9 Downer EDI Works Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWCA 78 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Randhawa v Serrato [2009] NSWSC 170 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Tsoukatos v Mustafa [2007] NSWSC 614
Texts Cited:	Hansard, NSW Legislative Assembly, 29 June 1999, Second Reading Speech
Category:	Principal judgment
Parties:	TQM Design & Construct Pty Ltd (First plaintiff/Applicant) Maroun Taouk (Second plaintiff) Anna Maria Romeo (First defendant/ Respondent) Giuseppe Romeo (Second defendant/ Respondent)
Representation:	Ms D Dinnen (Plaintiffs/Applicants) Mr D Allen (Defendants/Respondents) Magna Carta Lawyers (Plaintiffs/Applicants) Proctor Phair Lawyers (Defendants/ Respondents)
File Number(s):	2010/341969