Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169

Tombleson v Dancorell Constructions Pty Limited [2007] NSWSC 1169

Section 25(4) of the Building and Construction Industry Security of Payment Act 1999 did not apply because the proceedings were not proceedings to set aside a judgment. However, the plaintiff sought to restrain enforcement of a judgment based on the adjudication determination without seeking to set aside that judgment, thereby avoiding the triggering of s 25(4). To ensure a just resolution of the proceedings and prevent circumvention of the Act, the Court exercised its discretion to stay the proceedings until the plaintiff provided security of $300,000, reduced from $366,091.26 to allow for possible defects.

Jurisdiction
Australia
Judgment Date
12 October 2007
Procedural Posture
Application for Stay and Security in Proceedings Seeking Certiorari, Declarations and Injunctions Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Notice of Motion; Ex Tempore Judgment
Outcome
Proceedings stayed until the plaintiff provides security of $300,000 by bank guarantee or payment into Court.
Legal Topics
['building and Construction Industry Security of Payment Act 1999' 'stay of Proceedings' 'security for Adjudicated Amount' 'adjudication Determination' 'enforcement of District Court Judgment' 'circumvention of Statutory Security Requirements']
['construction Law' 'civil Procedure' 'equity'] ['building and Construction Industry Security of Payment Act 1999' 'stay of Proceedings' 'security for Adjudicated Amount' 'adjudication Determination' 'enforcement of District Court Judgment' 'circumvention of Statutory Security Requirements']

Case Brief

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Procedural Posture

Application for Stay and Security in Proceedings Seeking Certiorari, Declarations and Injunctions Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Notice of Motion; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether s 25(4) of the Building and Construction Industry Security of Payment Act 1999 required the plaintiff to pay security where the plaintiff sought injunctions and declarations but did not seek to set aside the District Court judgment.' 'Whether the Court should otherwise stay the proceedings under s 67 of the Civil Procedure Act 2005 because the pleadings appeared to avoid or circumvent the operation of s 25(4) of the Building and Construction Industry Security of Payment Act 1999.' 'Whether a stay should be conditioned on the plaintiff providing a bank guarantee or paying money into Court.']

Ratio Decidendi

Section 25(4) of the Building and Construction Industry Security of Payment Act 1999 did not apply because the proceedings were not proceedings to set aside a judgment. However, the plaintiff sought to restrain enforcement of a judgment based on the adjudication determination without seeking to set aside that judgment, thereby avoiding the triggering of s 25(4). To ensure a just resolution of the proceedings and prevent circumvention of the Act, the Court exercised its discretion to stay the proceedings until the plaintiff provided security of $300,000, reduced from $366,091.26 to allow for possible defects.

Court Disposition

Proceedings stayed until the plaintiff provides security of $300,000 by bank guarantee or payment into Court.

Orders

  • ['The proceedings are stayed until the plaintiff provides a bank guarantee to the first defendant in the amount of $300,000, or pays money into Court or lodges with the Court a form of bank guarantee agreeable to the first defendant for that amount.' 'The matter is listed for directions on 26 October 2007 for the...