Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412

The contract should be rectified by deleting cl 9.1 as the evidence demonstrated a common intention for payment terms to be 30 days from month end; the adjudication application was made within time as prescribed by ss 16 and 17; a company in liquidation remains a 'claimant' under the Act, contrary to the Victorian Court of Appeal in Façade, which is 'plainly wrong'; however, enforcement of any judgment is subject to an automatic stay pending accounts pursuant to s 553C of the Corporations Act, due to the operation of set-off on mutual dealings.

Jurisdiction
Australia
Judgment Date
05 April 2018
Procedural Posture
Principal Judgment / Final Orders
Outcome
Contract rectified; adjudication determination valid; judgment stayed pending s 553C account.
Legal Topics
['contract Rectification' 'adjudication Under Building and Construction Industry Security of Payment Act' 'companies in Liquidation and Progress Payments' 'set Off Under Corporations Act']
['contracts' 'building and Construction' 'corporations'] ['contract Rectification' 'adjudication Under Building and Construction Industry Security of Payment Act' 'companies in Liquidation and Progress Payments' 'set Off Under Corporations Act']

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Procedural Posture

Principal Judgment / Final Orders

Legal Issues

  1. 1 ['Whether contract should be rectified by deleting cl 9.1 of the Special Conditions' 'Whether adjudication application was made within time under ss 16 and 17 of the Act' 'Whether Ostwald Bros Pty Ltd (in liq) retains rights under the Building and Construction Industry Security of Payment Act following liquidation' 'Impact of s 553C of the Corporations Act on adjudication determination']

Ratio Decidendi

The contract should be rectified by deleting cl 9.1 as the evidence demonstrated a common intention for payment terms to be 30 days from month end; the adjudication application was made within time as prescribed by ss 16 and 17; a company in liquidation remains a 'claimant' under the Act, contrary to the Victorian Court of Appeal in Façade, which is 'plainly wrong'; however, enforcement of any judgment is subject to an automatic stay pending accounts pursuant to s 553C of the Corporations Act, due to the operation of set-off on mutual dealings.

Court Disposition

Contract rectified; adjudication determination valid; judgment stayed pending s 553C account.

Orders

  • ['Contract be rectified by deleting cl 9.1 of the Special Conditions.' 'Any judgment obtained by Ostwald Bros Pty Ltd (in liq) arising from the filing of an adjudication certificate following the adjudication determination of 6 November 2017 be stayed until an account is taken, pursuant to s 553C of the Corporations...