Legal Research
Cases
Vanella Pty Ltd v TFM Epping Land Pty Ltd

Vanella Pty Ltd v TFM Epping Land Pty Ltd

Link copied

Case Copied 11 October 2019 56 min read

Contents

On this page

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Vannella Pty Limited atf Capitalist Family Trust v TFM Epping Land Pty Ltd; Decon Australia Pty Limited v TFM Epping Land Pty Ltd; Vannella Pty Limited v TFM Epping Land Pty Ltd [2019] NSWSC 1379
Hearing dates: 18 September 2019
Date of orders: 11 October 2019
Decision date: 11 October 2019
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
See [218]

Catchwords:
BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for summary judgment – whether validity of payment claim is a triable issue – whether email constitutes payment schedule – where email fails to specify the claims to which it objects and the grounds for objection
COSTS – security for costs – relevance of personal undertaking by director – discretion to order – no issue of principle
Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 5, 8, 13, 14, 15, 32
Corporations Act 2001 (Cth), s 1335
Uniform Civil Procedure Rules 2005 (NSW), rr 13.1, 42.21
Cases Cited: Agar v Hyde (2000) 201 CLR 552
Australia and New Zealand Banking Group Ltd v Oswal [2013] VSCA 156
Brodyn Pty Ltd trading as Time Cost & Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Brookhollow Pty Limited v R & R Consultants Pty Limited [2006] NSWSC 1
Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448
Clyde Industries Ltd v Ryde Engineering Pty Ltd (1993) 11 ACLC 325
Coordinated Constructions Co Pty Ltd v JM Hargraves (NSW) Pty Ltd (2005) 63 NSWLR 385; [2005] NSWCA 228
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways New South Wales (1964) 112 CLR 125
Idoport Pty Ltd v National Australia Bank [2001] NSWSC 744
Jazabas Pty Ltd v Haddad [2007] NSWCA 291
KDL Building Pty Ltd v Mount [2006] NSWSC 474
KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd & Ors [2019] QSC 178
KP Cable Investments Pty Limited v Meltglow Pty Limited (1995) 56 FCR 189
Nepean Engineering Pty Limited v Total Process Services Pty Limited (2005) 64 NSWLR 462; [2005] NSWCA 409
Neumann Contractors Pty Ltd v Peet Beachton Syndicate Ltd [2011] 1 QD R 17
Parkview v Fortia [2009] NSWSC 1066
Protectavale Pty Ltd v K2K Pty Ltd [2008] FCA 1248
Silverton Ltd v Harvey [1975] 1 NSWLR 659
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Style Timber Floor Pty Limited v Krivosudsky [2019] NSWCA 171
Sunbird Plaza Pty Ltd v Boheto Pty Ltd [1983] 1 Qd R 248
Warren Mitchell Pty Limited v Australian Maritime Officers’ Union (1993) 12 ACSR 1
Webster v Lampard (1993) 177 CLR 598
Wollongong City Council v Legal Business Centre Pty Limited [2012] NSWCA 245
Category: Principal judgment
Parties:
Proceedings 2019/165506

Vannella Pty Limited atf Capitalist Family Trust (First…

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.

Keep reading for free

Create a free CaseChat account to read Vanella Pty Ltd v TFM Epping Land Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWSC 1379
Decision Date: 11 October 2019

CaseChat Overview and Summary

Vanella Pty Ltd, the claimant, brought an application against TFM Epping Land Pty Ltd, the respondent, seeking summary judgment for a sum owed under a payment claim pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW). The dispute arose from a building contract, and the core issue was the validity of a payment claim submitted by Vanella, which TFM had not honoured. The matter was heard in the Supreme Court of New South Wales, with Justice Lee presiding.

The primary legal issues before the court involved the determination of whether the validity of the payment claim was a matter that could be decided on summary judgment, and whether an email sent by TFM could be considered a valid payment schedule under the Act. Additionally, the court had to consider whether TFM's email, which purported to object to the payment claim, was sufficient in its particulars to be considered a valid objection. The court needed to assess whether the email specified the claims to which it objected and the grounds for those objections.

The court found that the validity of the payment claim was a triable issue, thus not suitable for summary judgment. It also determined that the email from TFM did not constitute a valid payment schedule as it failed to specify the claims to which it objected or the grounds for objection. Consequently, the court held that the personal undertaking provided by a director of TFM was not relevant to the issue of security for costs. Justice Lee concluded that the application for summary judgment should be dismissed, and the matter would proceed to a full trial.

In light of the court's determination, it dismissed Vanella's application for summary judgment and ordered that the matter proceed to a trial. Additionally, the court considered it appropriate to exercise its discretion to order TFM to provide security for costs, taking into account the nature of the dispute and the likelihood of the claim being successful.

Orders