JBK Engineering Pty Limited v Brick & Block Company Pty Limited; JBK Design & Construction Pty Limited v Brick & Block Company Pty Limited; Brick & Block Company Pty Limited v JBK Engineering Pty Limited [2006] NSWSC 1301

JBK Engineering Pty Limited v Brick & Block Company Pty Limited; JBK Design & Construction Pty Limited v Brick & Block Company Pty Limited; Brick & Block Company Pty Limited v JBK Engineering Pty Limited [2006] NSWSC 1301

Because s 25(4)(b) required security only until final determination at first instance, and because the $600,000 security would remain within the Registrar's custody either as cash or by exchange for an equivalent bank guarantee, the Act's requirements were satisfied. It was not appropriate on the evidence or principle to require Brick & Block to give an undertaking as to damages or provide a further $250,000 security as a condition of the stay or retention of funds.

Jurisdiction
Australia
Judgment Date
24 November 2006
Procedural Posture
Equity Division, Technology and Construction List; Building and Construction Industry Security of Payment Act 1999 (nsw) Proceedings / Notices of Motion Following Judgment Delivered on 14 November 2006, Concerning Stays and Payment Out or Retention of Security Funds
Outcome
Order for security funds to remain with the Registrar or be exchanged for an equivalent bank guarantee; JBK's applications for payment out in the relevant paragraph were dismissed; costs orders made.
Legal Topics
['building and Construction Industry Security of Payment Act 1999 (nsw)' 'security Paid Into Court' 'stay of Judgment' 'undertaking as to Damages' 'construction of S 25(4)(b)']
['building and Construction' 'civil Procedure' 'equity'] ['building and Construction Industry Security of Payment Act 1999 (nsw)' 'security Paid Into Court' 'stay of Judgment' 'undertaking as to Damages' 'construction of S 25(4)(b)']

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Procedural Posture

Equity Division, Technology and Construction List; Building and Construction Industry Security of Payment Act 1999 (nsw) Proceedings / Notices of Motion Following Judgment Delivered on 14 November 2006, Concerning Stays and Payment Out or Retention of Security Funds

Legal Issues

  1. 1 ['Whether the words "final determination of the proceedings" in s 25(4)(b) of the Building & Construction Industry Security of Payment Act 1999 (NSW) refer to final determination at first instance or after appeal.' "Whether the security funds paid into Court by Brick & Block should be paid out to JBK or remain in the Registrar's custody, including by exchange for a bank guarantee." 'Whether Brick & Block should be required to give an undertaking as to damages and security of $250,000 as a condition of the stay or retention of funds.']

Ratio Decidendi

Because s 25(4)(b) required security only until final determination at first instance, and because the $600,000 security would remain within the Registrar's custody either as cash or by exchange for an equivalent bank guarantee, the Act's requirements were satisfied. It was not appropriate on the evidence or principle to require Brick & Block to give an undertaking as to damages or provide a further $250,000 security as a condition of the stay or retention of funds.

Court Disposition

Order for security funds to remain with the Registrar or be exchanged for an equivalent bank guarantee; JBK's applications for payment out in the relevant paragraph were dismissed; costs orders made.

Orders

  • ['The sum of $600,000 held by the Registrar is to remain in the custody of the Registrar, or, if and only if a co-relative bank guarantee comes forward from JBK in the same amount, the Registrar may exchange one form of security for the other.' "In proceedings 55041 of 2006 and 55042 of 2006, JBK's applications for...