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Urban Traders v Paul Michael

Urban Traders v Paul Michael

Case [2009] NSWSC 1072 15 October 2009

Breach of Contract

Issue Estoppel

Abuse of Process

Admissibility of Evidence

Building and Engineering Contracts

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CITATION: Urban Traders v Paul Michael [2009] NSWSC 1072

HEARING DATE(S): 22 September 2009

JUDGMENT DATE :
15 October 2009

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

DECISION: See paragraphs [122] to [125] of the judgment.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS – Building and Construction Industry Security of Payment Act – whether valid payment claim – whether payment claim sought to reagitate issues decided in earlier adjudication determination – whether issue estoppel arises from adjudication determination – whether payment claim sought to reagitate issues raised in previous payment claim – whether statutory right to payment enlivened – whether issue estoppel arises from statutory right – whether abuse of process – whether adjudicator can determine claims for lost profit or cost of re-pricing or interest – whether issues appropriate to be determined by an adjudicator.

LEGISLATION CITED: Supreme Court Act 1970
The Building and Construction Industry Security of Payment Act 1999

CATEGORY: Principal judgment

CASES CITED: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 21 BCL 312
Coordinated Construction Co Pty Ltd v J M Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385
Dewhirst v Edwards [1983] 1 NSWLR 34
D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69
Isis Projects Pty Ltd v Clarence Street Pty Ltd [2004] NSWSC 714
Kembla Coal and Coke Pty Ltd v Select Civil Pty Ltd [2004] NSWSC 628
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (In Liq) (2005) 64 NSWLR 462
Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWSC 416
Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116
Ridgeway v The Queen (1995) 184 CLR 19
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
The University of Sydney v Cadence Australia Pty Limited [2009] NSWSC 635
Walton v Gardiner (1993) 177 CLR 378

PARTIES: Urban Traders Pty Limited (First Plaintiff)
J A Westaway & Son Pty Limited (Second Plaintiff)
Paul Michael Pty Limited (Defendant)

FILE NUMBER(S): SC 55081/09

COUNSEL: Dr A J Greinke (Plaintiffs)
S Goldstein (Defendant)

SOLICITORS: Cara Marasco & Company (Plaintiffs)
CCS Legal Pty Ltd (Defendant)

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

McDOUGALL J

15 October 2009

55081/09 URBAN TRADERS PTY LTD v PAUL MICHAEL PTY LTD

JUDGMENT

1 HIS HONOUR: The Building and Construction Industry Security of Payment Act 1999 (the Act) was enacted for the benefit of builders and subcontractors. Its objects are, in brief, to give those who carry out construction work a right to receive regular progress payments, and a statutory mechanism for enforcing that…

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 Urban Traders v Paul Michael

Details

AGLC: Urban Traders v Paul Michael [2009] NSWSC 1072
Case: [2009] NSWSC 1072
Decision Date: 15 October 2009

CaseChat Overview and Summary

Urban Traders brought an action against Paul Michael, seeking an adjudication of a payment claim under the Building and Construction Industry Security of Payment Act. The primary dispute revolves around the validity of the payment claim and whether the issues raised in the claim had already been determined in a previous adjudication. The matter was heard in the Supreme Court of New South Wales.

The court needed to decide if the payment claim was valid and whether it sought to reagitate issues already decided in an earlier adjudication determination. Additionally, the court had to determine if an issue estoppel arose from the previous adjudication determination. Another point of contention was whether the payment claim sought to reagitate issues raised in a previous payment claim. The court also considered whether the statutory right to payment was enlivened and if an issue estoppel arose from the statutory right. Furthermore, the court examined whether there was an abuse of process and whether the adjudicator could determine claims for lost profit, cost of re-pricing, or interest. Lastly, the court evaluated whether the issues were appropriate to be determined by an adjudicator.

The court found that the payment claim was valid and did not seek to reagitate issues decided in the earlier adjudication. The court held that issue estoppel did not arise from the previous adjudication determination. It was determined that the payment claim did not seek to reagitate issues raised in a previous payment claim. The court found that the statutory right to payment was indeed enlivened. However, it was determined that issue estoppel did not arise from the statutory right. The court ruled that there was no abuse of process. It was concluded that the adjudicator could not determine claims for lost profit, cost of re-pricing, or interest, and that such issues were not appropriate to be determined by an adjudicator.

The court ordered that the respondent pay the full amount claimed by the applicant, plus interest and costs.

Orders