Bell Partners v Kann Finch [2004] NSWSC 1034

Bell Partners v Kann Finch [2004] NSWSC 1034

The appeal failed because Bell Partners did not demonstrate any error of law. The Magistrate was entitled to grant summary judgment notwithstanding the alleged affidavit defect, as he had fully investigated whether there was any arguable defence and found none. Kann Finch's payment claims and entitlement to progress payments complied with the Building and Construction Industry Security of Payment Act 1999 (NSW), Bell Partners had not served payment schedules, and the statutory scheme limited available defences. The reserved judgment procedure complied with Pt 3 r 8 of the Local Court (Civil Claims) Rules 1988 (NSW) and did not deny natural justice.

Jurisdiction
Australia
Judgment Date
08 November 2004
Procedural Posture
Appeal Under S 69 of the Local Court (civil Claims) Act 1970 (nsw) From Local Court Summary Judgment / Supreme Court Determination of Amended Summons Filed 29 October 2004
Outcome
Appeal dismissed; Magistrate's decision affirmed; amended summons dismissed; plaintiff ordered to pay defendant's costs as agreed or assessed.
Legal Topics
['appeal on Question of Law' 'summary Judgment' 'payment Claims' 'progress Payments' 'reserved Judgment' 'natural Justice']
['civil Procedure' 'building and Construction' 'security of Payment'] ['appeal on Question of Law' 'summary Judgment' 'payment Claims' 'progress Payments' 'reserved Judgment' 'natural Justice']

Case Brief

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Procedural Posture

Appeal Under S 69 of the Local Court (civil Claims) Act 1970 (nsw) From Local Court Summary Judgment / Supreme Court Determination of Amended Summons Filed 29 October 2004

Legal Issues

  1. 1 ['Whether the Magistrate erred in ordering summary judgment without affidavit evidence from the plaintiff or a responsible person that the defendant had no defence as required by Pt 10A r 2 of the Local Court (Civil Claims) Rules 1988 (NSW).' 'Whether Kann Finch was entitled to a progress payment and to serve payment claims under s 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the payment claims complied with the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether there was a triable issue precluding summary judgment.' 'Whether delivery of the reserved judgment without prior notice to the parties involved non-compliance with Pt 3 r 8 of the Local Court (Civil Claims) Rules 1988 (NSW) or denial of natural justice.']

Ratio Decidendi

The appeal failed because Bell Partners did not demonstrate any error of law. The Magistrate was entitled to grant summary judgment notwithstanding the alleged affidavit defect, as he had fully investigated whether there was any arguable defence and found none. Kann Finch's payment claims and entitlement to progress payments complied with the Building and Construction Industry Security of Payment Act 1999 (NSW), Bell Partners had not served payment schedules, and the statutory scheme limited available defences. The reserved judgment procedure complied with Pt 3 r 8 of the Local Court (Civil Claims) Rules 1988 (NSW) and did not deny natural justice.

Court Disposition

Appeal dismissed; Magistrate's decision affirmed; amended summons dismissed; plaintiff ordered to pay defendant's costs as agreed or assessed.

Orders

  • ['The appeal is dismissed.' 'The decision of the Magistrate Judge Price dated 7 June 2004 is affirmed.' 'The amended summons filed 29 October 2004 is dismissed.' "The plaintiff is to pay the defendant's costs as agreed or assessed."]