Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1791

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1791

Goodwin was not entitled to have the $265,510 retained in Court because it had failed in its challenge to the adjudication determination before McDougall J and in the Court of Appeal, and when it made the earlier unsuccessful application it knew or could reasonably ascertain almost all matters now relied on. The only truly new evidence, Mr Johnstone's affidavit about Mr Roberts' alleged statement, did not provide a sound basis to hold the funds in Court, particularly given the dilatory progress of Goodwin's proceedings.

Jurisdiction
Australia
Judgment Date
21 November 2018
Procedural Posture
Notice of Motion in Equity Technology and Construction List Concerning Retention of Funds Paid Into Court Following an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Application Before the Commercial and Technology & Construction List Duty Judge After Dismissal of the Challenge to the Adjudication Determination and Dismissal of the Appeal
Outcome
Plaintiff's Notice of Motion dismissed with costs.
Legal Topics
['adjudication Determination' 'retention of Funds Paid Into Court' 'stay or Restraint of Payment Following Adjudication' 'builder Insolvency Risk' 'successive Application After Earlier Refusal']
['building and Construction' 'security of Payment' 'civil Procedure'] ['adjudication Determination' 'retention of Funds Paid Into Court' 'stay or Restraint of Payment Following Adjudication' 'builder Insolvency Risk' 'successive Application After Earlier Refusal']

Case Brief

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Procedural Posture

Notice of Motion in Equity Technology and Construction List Concerning Retention of Funds Paid Into Court Following an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Application Before the Commercial and Technology & Construction List Duty Judge After Dismissal of the Challenge to the Adjudication Determination and Dismissal of the Appeal

Legal Issues

  1. 1 ['Whether the $265,510 paid into Court by Goodwin pending its challenge to the adjudication determination should be retained in Court pending the outcome of the underlying proceedings.' 'Whether Goodwin showed more than the risk, assigned to it by the Act, that DSD would be unable to repay the adjudicated amount if Goodwin later succeeded.' 'Whether any circumstances beyond those known or available to Goodwin when McDougall J refused an earlier application justified retaining the funds in Court.']

Ratio Decidendi

Goodwin was not entitled to have the $265,510 retained in Court because it had failed in its challenge to the adjudication determination before McDougall J and in the Court of Appeal, and when it made the earlier unsuccessful application it knew or could reasonably ascertain almost all matters now relied on. The only truly new evidence, Mr Johnstone's affidavit about Mr Roberts' alleged statement, did not provide a sound basis to hold the funds in Court, particularly given the dilatory progress of Goodwin's proceedings.

Court Disposition

Plaintiff's Notice of Motion dismissed with costs.

Orders

  • ["Goodwin's Notice of Motion of 20 November 2018 be dismissed with costs."]