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 principleLegislation 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, 42.21Cases 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 245Category: Principal judgment Parties: Proceedings 2019/165506
Vannella Pty Limited atf Capitalist Family Trust (First…
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- Case
- [2019] NSWSC 1379
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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