Jem Developments Pty Ltd & Anor v Hansen Yuncken Pty Ltd [2006] NSWSC 1087

Jem Developments Pty Ltd & Anor v Hansen Yuncken Pty Ltd [2006] NSWSC 1087

The application to dismiss or stay the plaintiff's proceedings was rejected because seeking declaratory relief as to the validity of an adjudication determination, without seeking to set aside the judgment, does not amount to 'proceedings to have the judgment set aside' under s 25(4) of the Building Construction Industry Security of Payment Act 1999 (NSW). As such, the requirement to pay the adjudicated amount into court as security does not arise. The abuse of process argument is overcome by the grant of leave to amend and possible consolidation of the two sets of proceedings.

Jurisdiction
Australia
Judgment Date
18 October 2006
Procedural Posture
Notice of Motion / Interlocutory/determination of Notice of Motion
Outcome
Notice of motion by first defendant dismissed; proceedings not dismissed or stayed.
Legal Topics
['security of Payment Act' 'declaratory Relief' 'stay of Proceedings' 'restitution' 'statutory Construction' 'abuse of Process']
['building and Construction' 'equity'] ['security of Payment Act' 'declaratory Relief' 'stay of Proceedings' 'restitution' 'statutory Construction' 'abuse of Process']

Case Brief

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Procedural Posture

Notice of Motion / Interlocutory/determination of Notice of Motion

Legal Issues

  1. 1 ["Whether a proceeding seeking declaratory relief as to the validity of an adjudication determination under the Building Construction Industry Security of Payment Act 1999 (NSW) constitutes 'proceedings to have the judgment set aside' for purposes of s 25(4) of the Act" 'Whether the requirement in s 25(4) to pay the adjudicated amount into Court as security arises when declaratory, but not set-aside, relief is sought' "Whether the plaintiff's summons constitutes an abuse of process"]

Ratio Decidendi

The application to dismiss or stay the plaintiff's proceedings was rejected because seeking declaratory relief as to the validity of an adjudication determination, without seeking to set aside the judgment, does not amount to 'proceedings to have the judgment set aside' under s 25(4) of the Building Construction Industry Security of Payment Act 1999 (NSW). As such, the requirement to pay the adjudicated amount into court as security does not arise. The abuse of process argument is overcome by the grant of leave to amend and possible consolidation of the two sets of proceedings.

Court Disposition

Notice of motion by first defendant dismissed; proceedings not dismissed or stayed.

Orders

  • ["Application in the first defendant's notice of motion to dismiss the summons or to stay the proceedings (either permanently or pending payment into Court) dismissed."]