Austruc v ACA; ACA v Sarlos & Anor [2004] NSWSC 131

Austruc v ACA; ACA v Sarlos & Anor [2004] NSWSC 131

The judgment was entered in the existing proceeding only because of a registry mistake, so the slip rule applied and relief should not be withheld. Although there was a serious question to be tried as to whether the builder's side deed made the construction contract form part of the Westpac loan agreement within s 7(2)(a), ACA had not raised that point before the adjudicator and, in any event, damages were an adequate remedy and the balance of convenience did not favour restraining enforcement. The adjudicator was entitled to consider Mr Finlay's statutory declaration as part of the adjudication materials, was not required to notify ACA that he would rely on it, and did not deny...

Jurisdiction
Australia
Judgment Date
11 March 2004
Procedural Posture
Building and Construction Security of Payment and Administrative Law Proceedings / Determination of Three Notices of Motion: Austruc's Slip Rule Motion, Aca's Interlocutory Restraint Motion, and Austruc's Notification Motion
Outcome
Austruc's slip rule notice of motion should succeed; Austruc's notification notice of motion should succeed if necessary; ACA's notice of motion should not succeed. The proceedings were stood over for draft orders and submissions on costs.
Legal Topics
['building and Construction Industry Security of Payment Act 1999' 'progress Claim' 'adjudication Determination' 'slip Rule' 'judgment Entered Under Incorrect Case Number' 'loan Agreement Exclusion Under S 7(2)(a)' 'order in the Nature of Certiorari' 'jurisdictional Error of Law' 'procedural Fairness' 'interlocutory Injunctive Relief']
['building and Construction' 'administrative Law' 'civil Procedure'] ['building and Construction Industry Security of Payment Act 1999' 'progress Claim' 'adjudication Determination' 'slip Rule' 'judgment Entered Under Incorrect Case Number' 'loan Agreement Exclusion Under S 7(2)(a)' 'order in the Nature of Certiorari' 'jurisdictional Error of Law' 'procedural Fairness' 'interlocutory Injunctive Relief']

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Procedural Posture

Building and Construction Security of Payment and Administrative Law Proceedings / Determination of Three Notices of Motion: Austruc's Slip Rule Motion, Aca's Interlocutory Restraint Motion, and Austruc's Notification Motion

Legal Issues

  1. 1 ['Whether the judgment entered under file number 55063/03 could be corrected under the slip rule.' 'Whether the construction contract formed part of a loan agreement for the purposes of s 7(2)(a) of the Building and Construction Industry Security of Payment Act 1999.' "Whether the adjudicator's determination was vitiated by denial of natural justice or jurisdictional error because he considered a statutory declaration attached to the adjudication application." 'Whether ACA should obtain interlocutory relief restraining Austruc from acting on the adjudication determination or judgment.' "Whether Austruc should obtain notification of any disposition or divestiture of ACA's assets."]

Ratio Decidendi

The judgment was entered in the existing proceeding only because of a registry mistake, so the slip rule applied and relief should not be withheld. Although there was a serious question to be tried as to whether the builder's side deed made the construction contract form part of the Westpac loan agreement within s 7(2)(a), ACA had not raised that point before the adjudicator and, in any event, damages were an adequate remedy and the balance of convenience did not favour restraining enforcement. The adjudicator was entitled to consider Mr Finlay's statutory declaration as part of the adjudication materials, was not required to notify ACA that he would rely on it, and did not deny...

Court Disposition

Austruc's slip rule notice of motion should succeed; Austruc's notification notice of motion should succeed if necessary; ACA's notice of motion should not succeed. The proceedings were stood over for draft orders and submissions on costs.

Orders

  • ["The proceedings were stood over to a date to be arranged with the judge's associate, but in any event no later than 2 April 2004, to enable the parties to bring in draft orders and make submissions on costs." "Austruc's slip rule notice of motion should succeed." "ACA's notice of motion should not succeed."...