Machkevitch v Andrew Building Constructions [2012] NSWSC 546

Machkevitch v Andrew Building Constructions [2012] NSWSC 546

There was an 'arrangement' between the builder, the proprietor, and Mr Machkevitch, under which the latter assured payment if the proprietor did not pay, sufficient to constitute a 'construction contract' under the Act. The arrangements do not need to be legally enforceable. Neither issue estoppel nor abuse of process precludes the builder’s claim, and declaratory relief should issue as sought in the cross-claim.

Jurisdiction
Australia
Judgment Date
24 April 2012
Procedural Posture
Civil Building and Construction Dispute / Final Judgment/decision After Hearing of Summons and Cross Claim
Outcome
Plaintiff's summons dismissed with costs; declaratory relief in favour of defendant on cross-claim granted.
Legal Topics
['security of Payment' 'construction Contract Interpretation' 'issue Estoppel' 'abuse of Process' 'declaratory Relief' 'estoppel']
['building and Construction Law' 'equity' 'civil Procedure'] ['security of Payment' 'construction Contract Interpretation' 'issue Estoppel' 'abuse of Process' 'declaratory Relief' 'estoppel']

Case Brief

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Procedural Posture

Civil Building and Construction Dispute / Final Judgment/decision After Hearing of Summons and Cross Claim

Legal Issues

  1. 1 ["Whether an 'arrangement' amounted to a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW)" 'Whether the construction contract requires the arrangement to be legally enforceable' 'Whether issue estoppel or Anshun estoppel prevents the builder from pressing its claim' 'Whether pressing the payment claim constituted an abuse of process' 'Whether the Court should grant declaratory relief in accordance with the cross-claim']

Ratio Decidendi

There was an 'arrangement' between the builder, the proprietor, and Mr Machkevitch, under which the latter assured payment if the proprietor did not pay, sufficient to constitute a 'construction contract' under the Act. The arrangements do not need to be legally enforceable. Neither issue estoppel nor abuse of process precludes the builder’s claim, and declaratory relief should issue as sought in the cross-claim.

Court Disposition

Plaintiff's summons dismissed with costs; declaratory relief in favour of defendant on cross-claim granted.

Orders

  • ['Summons dismissed.' "Plaintiff to pay first defendant's costs; otherwise no order as to costs." 'Declarations in accordance with prayers 1 and 2 of the cross-claim.' 'Exhibits to be returned.']