Ziade v Tricon - [2004] NSWSC 1070

Reported Decision:
51 ACSR 372

Supreme Court

CITATION: Ziade v Tricon [2004] NSWSC 1070

HEARING DATE(S): 16 September 2004

JUDGMENT DATE:
22 November 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 44

CATCHWORDS: Corporations Act. Building and construction, hearing of originating process seeking to set aside statutory demand, contested adjudication application, property developer, construction manager, construction management agreement. Offsetting claim, whether this was an appropriate supplementation of the initial affidavit or whether the initial affidavit should have provided estimates of the cost. Whether regard could be had to the rectification of Brook Street in the circumstances that Brook Street has now been sold by the developer. Is the offsetting claim genuine. Proceedings dismissed.

PARTIES :
Ziade Investments No 1 Property Limited v Tricon Projects Pty Limited

FILE NUMBER(S): SC 3355 of 2004

COUNSEL: Mr PT Taylor SC & D Weinberger for plaintiff
Mr GM Watson SC & G Jones for defendant

SOLICITORS: Deacons for plaintiff
KQ Lawyers for defendant

- 1-

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Monday 22 November 2004

3355/2004 ZIADE INVESTMENTS NO 1 PTY LIMITED v TRICO PROJECTS PTY LIMITED.

1 MASTER: This is the hearing of an originating process seeking to set aside a statutory demand served by the defendant upon the plaintiff. The statutory demand is dated 20 May 2004 and it seeks to recover an amount of $337,374.35 claimed to be due under a District Court judgment entered in the District Court on 13 May 2004. That judgment arose out of a contested adjudication application under the Building and Construction Industry Security of Payments Act 1999 (NSW) (the Act).

2 The plaintiff in this matter is a property developer and the defendant is a construction manager. During late 2002 the plaintiff and the defendant entered into two construction management agreements in similar terms for the development of two sites. One site was at 84 Dudley Street, Coogee and the other at 145 Brook Street, Coogee. As construction manager, the defendant employed various sub-contractors and builders to construct the works on the site.

3 The projects were substantially commenced and were approaching completion when work was suspended. There was then a dispute and the defendant made applications for adjudication under the Act. These were contested before the adjudicator and the defendant received adjudications in its favour in that they were owed various amounts. In respect of the Dudley Street, Coogee project, the adjudication in favour of the defendant was in the sum of $337,374.35, which is the amount referred to in the statutory demand.

4 The amount in the demand was not paid and the plaintiff, the developer, seeks to raise an offsetting claim under s 459H (1)(b) of the Corporations Act 2001 (Cth). In Max Cooper & Sons (Builders) Pty Ltd v M E Booth & Sons Pty Ltd (2003) 201 ALR 680; NSWSC 929 I held that a contractual offsetting claim could be used to set aside a demand based upon an adjudication…

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 Ziade v Tricon

Details

AGLC: Ziade v Tricon [2004] NSWSC 1070
Case: [2004] NSWSC 1070
Decision Date: 22 November 2004

CaseChat Overview and Summary

Ziade v Tricon was a case before the Federal Circuit and Family Court of Australia, where the plaintiff, Ziade, a property developer, sought to set aside a statutory demand made by the defendant, Tricon, a construction manager. The case revolved around a construction management agreement between the parties, with a dispute over the amount owed by Ziade to Tricon. The central legal issues were whether the offsetting claim presented by Ziade constituted a genuine supplementation of the initial affidavit or if it should have included estimates of the costs. Additionally, the court had to consider if the rectification of the Brook Street property, which had been sold by Ziade, should be taken into account. The court also had to determine if the offsetting claim was genuine and if it warranted any consideration.

In delivering the judgment, the court held that the offsetting claim presented by Ziade was not a genuine supplementation of the initial affidavit. Instead, it should have included estimates of the costs from the outset. The court held that the rectification of the Brook Street property was not relevant in the circumstances, as it had already been sold by the developer. The court found that the offsetting claim was not genuine, as it was based on unsubstantiated allegations and had not been properly supported by evidence. The court concluded that the proceedings should be dismissed.

The court found that the offsetting claim was not a genuine attempt to resolve the dispute and was instead a tactic to delay the statutory demand process. The court emphasised the importance of providing accurate and complete information in legal proceedings and held that the failure to do so could result in the dismissal of the case. The court also noted that the sale of the Brook Street property did not alter the fact that Ziade owed money to Tricon, and therefore, the rectification of the property was irrelevant to the case. The court dismissed the proceedings and ordered Ziade to pay Tricon's costs.

Orders