Duzenli Developments Pty Ltd ACN 623 852 031 trading as Zen Group Constructions v Benuga Pty Ltd ACN 001 131 997 [2020] NSWSC 1667

Duzenli Developments Pty Ltd ACN 623 852 031 trading as Zen Group Constructions v Benuga Pty Ltd ACN 001 131 997 [2020] NSWSC 1667

There was an arguable basis for interlocutory relief restraining the owner from acting on the revocation of the builder's licence until NCAT determines the lawfulness of the termination, and the balance of convenience favoured excluding the owner from the site. Allowing the owner in to engage another builder could foreclose NCAT's consideration of rectification by the responsible party under the Home Building Act 1989, s 48MA, while a restraint compatible with NCAT's access directions would reduce conflict, security expense and risk of breaches of the peace without usurping NCAT's role.

Jurisdiction
Australia
Judgment Date
23 November 2020
Procedural Posture
Equity Duty List Application for Interlocutory Injunction Concerning Access to a Residential Building Site Pending NCAT Proceedings / Interlocutory Hearing
Outcome
Interlocutory injunction granted restraining the defendant from entering the site until NCAT determines the parties' building works applications; costs of the interlocutory application are each party's costs in the proceedings; liberty to apply granted.
Legal Topics
['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'revocation of Contractual Licence to Enter Land' 'residential Building Contract' 'ncat Proceedings' 'rectification of Defective Work']
['equity' 'building and Construction' 'contract Law' 'home Building' 'civil Procedure'] ['interlocutory Injunction' 'serious Question to Be Tried' 'balance of Convenience' 'revocation of Contractual Licence to Enter Land' 'residential Building Contract' 'ncat Proceedings' 'rectification of Defective Work']

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Procedural Posture

Equity Duty List Application for Interlocutory Injunction Concerning Access to a Residential Building Site Pending NCAT Proceedings / Interlocutory Hearing

Legal Issues

  1. 1 ["Whether the defendant should be restrained from entering the site until NCAT determines the parties' building dispute." "Whether the plaintiff showed a serious question to be tried concerning the validity of the owner's termination of the building contract and revocation of the builder's licence to enter the site." 'Whether the balance of convenience favoured excluding both parties from the site pending resolution of the NCAT proceedings.' 'Whether the Civil and Administrative Tribunal Act 2013, Schedule 4, s 5(3) prevented the Supreme Court from determining the application.' "Whether allowing the owner into possession would foreclose the Tribunal's consideration of rectification by the responsible party as the preferred outcome under the Home Building Act 1989, s 48MA."]

Ratio Decidendi

There was an arguable basis for interlocutory relief restraining the owner from acting on the revocation of the builder's licence until NCAT determines the lawfulness of the termination, and the balance of convenience favoured excluding the owner from the site. Allowing the owner in to engage another builder could foreclose NCAT's consideration of rectification by the responsible party under the Home Building Act 1989, s 48MA, while a restraint compatible with NCAT's access directions would reduce conflict, security expense and risk of breaches of the peace without usurping NCAT's role.

Court Disposition

Interlocutory injunction granted restraining the defendant from entering the site until NCAT determines the parties' building works applications; costs of the interlocutory application are each party's costs in the proceedings; liberty to apply granted.

Orders

  • ['Upon the plaintiff giving the usual undertaking as to damages, the defendant by itself, and by its employees or agents, is restrained from entering the site described in the Summons until the NSW Civil and Administrative Tribunal has heard and determined all applications before it between the plaintiff and the...