Masters in Building Training Pty Limited v State of New South Wales (No 2) [2021] NSWSC 747

Masters in Building Training Pty Limited v State of New South Wales (No 2) [2021] NSWSC 747

The earlier interlocutory order of 12 April 2021 was intended to require the Department to continue performing the Smart and Skilled contract as if the termination notice were ineffective, including the critical obligation to pay subsidies and loadings due under the agreement. The later order of 27 May 2021 did not displace that intention but addressed set-off or repayment issues. Masters' motion was not summary judgment, because no final rights or amounts were determined and restitution would remain available. The Department's asserted suspension, risk allocation, unclean hands and balance of convenience arguments did not defeat the prima facie case or justify moving away from Kunc J's...

Jurisdiction
Australia
Judgment Date
22 June 2021
Procedural Posture
Civil Procedure Interlocutory Application in Equity / Plaintiff's Notice of Motion for Interlocutory Relief Following Earlier Interlocutory Injunction Requiring Continued Performance of the Contract
Outcome
Plaintiff's motion granted in qualified form; defendant restrained from withholding subsidies and loadings due under the agreement, subject to preservation of clause 22 repayment rights.
Legal Topics
['interlocutory Injunction' 'mandatory Interlocutory Relief' 'government Subsidy Contract' 'withholding Payments' 'set Off' 'unclean Hands' 'balance of Convenience' 'relitigation of Interlocutory Decisions']
['civil Procedure' 'contract Law' 'equity'] ['interlocutory Injunction' 'mandatory Interlocutory Relief' 'government Subsidy Contract' 'withholding Payments' 'set Off' 'unclean Hands' 'balance of Convenience' 'relitigation of Interlocutory Decisions']

Case Brief

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Procedural Posture

Civil Procedure Interlocutory Application in Equity / Plaintiff's Notice of Motion for Interlocutory Relief Following Earlier Interlocutory Injunction Requiring Continued Performance of the Contract

Legal Issues

  1. 1 ["Whether the plaintiff's application to restrain withholding of subsidies and loadings was in substance an application for summary judgment." 'Whether the application impermissibly relitigated earlier interlocutory decisions made by Kunc J.' 'Whether the plaintiff established a prima facie case for interlocutory relief restraining the defendant from withholding subsidy and loading payments.' 'Whether alleged unclean hands by the plaintiff barred relief.' 'Whether the balance of convenience favoured further interlocutory relief.' "Whether any order should preserve the defendant's rights under clause 22 of the agreement to repayment or set-off."]

Ratio Decidendi

The earlier interlocutory order of 12 April 2021 was intended to require the Department to continue performing the Smart and Skilled contract as if the termination notice were ineffective, including the critical obligation to pay subsidies and loadings due under the agreement. The later order of 27 May 2021 did not displace that intention but addressed set-off or repayment issues. Masters' motion was not summary judgment, because no final rights or amounts were determined and restitution would remain available. The Department's asserted suspension, risk allocation, unclean hands and balance of convenience arguments did not defeat the prima facie case or justify moving away from Kunc J's...

Court Disposition

Plaintiff's motion granted in qualified form; defendant restrained from withholding subsidies and loadings due under the agreement, subject to preservation of clause 22 repayment rights.

Orders

  • ['Upon provision by the Plaintiff of the usual undertaking as to damages, an order that until further order of the Court, the Defendant be restrained from exercising or purporting to exercise the right to withhold payment of Subsidies and Loadings due to the Plaintiff in accordance with the terms of the agreement...