Lindvest DM Pty Ltd v CPDM Pty Ltd [2020] NSWSC 1290

Lindvest DM Pty Ltd v CPDM Pty Ltd [2020] NSWSC 1290

It is not an abuse of process for a party against whom an adjudication judgment has been entered under s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW), and who does not seek to stay or set aside that judgment or pay the judgment debt into court, to commence and prosecute proceedings seeking to vindicate contractual rights preserved by s 32 of the Act.

Parties
Plaintiff/respondent: Lindvest DM Pty Ltd; Defendant/applicant: CPDM Pty Ltd
Jurisdiction
Australia
Judgment Date
22 September 2020
Procedural Posture
Civil Building and Construction (equity, Technology and Construction List) / Interlocutory Motion to Strike Out or Stay Proceedings; Application for Security for Costs
Outcome
Defendant's notice of motion to strike out or stay the proceedings dismissed. Security for costs ordered in instalments. Defendant to pay costs of notice of motion.
Legal Topics
Abuse of Process, Contractual Rights, Security of Payment Act, Security for Costs
Building and Construction Law Civil Procedure Abuse of Process Contractual Rights Security of Payment Act Security for Costs

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Parties

Lindvest DM Pty Ltd

Plaintiff/respondent

CPDM Pty Ltd

Defendant/applicant

Procedural Posture

Civil Building and Construction (equity, Technology and Construction List) / Interlocutory Motion to Strike Out or Stay Proceedings; Application for Security for Costs

Legal Issues

  1. 1 Whether it is an abuse of process to commence contractual proceedings seeking final relief under s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) while an adjudication judgment remains unsatisfied and without paying the judgment debt into court.

Ratio Decidendi

It is not an abuse of process for a party against whom an adjudication judgment has been entered under s 25(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW), and who does not seek to stay or set aside that judgment or pay the judgment debt into court, to commence and prosecute proceedings seeking to vindicate contractual rights preserved by s 32 of the Act.

Court Disposition

Defendant's notice of motion to strike out or stay the proceedings dismissed. Security for costs ordered in instalments. Defendant to pay costs of notice of motion.

Orders

  • Defendant's notice of motion to dismiss or stay proceedings is dismissed.
  • Plaintiff to provide security for costs in the sum of $50,000 by instalments: (1) within 14 days of these orders, (2) 14 days before defendant is to serve its evidence, (3) within 14 days of hearing date allocation.