Air Dynamics Control & Services Contracting v Durham & Anor [2005] NSWSC 366

Air Dynamics Control & Services Contracting v Durham & Anor [2005] NSWSC 366

Because the final challenges to the adjudication raised genuine issues but could not be resolved on the interlocutory motion, and because the second defendant had received and banked the Local Court cheque before becoming aware of the ex parte order with no evidence of bad faith, the Court could not presume the plaintiff would ultimately succeed and declined to order payment into court or impose equivalent restraints. The earlier ex parte order was ineffectual and was discharged.

Jurisdiction
Australia
Judgment Date
22 April 2005
Procedural Posture
Administrative Law List Proceedings Challenging an Adjudication Under the Building and Construction Industry Security of Payment Act, 1999 / Interlocutory Motion Following an Ex Parte Restraint Order
Outcome
Interlocutory relief refused; ex parte order discharged; matter listed for directions; costs reserved.
Legal Topics
['security of Payment Adjudication' 'interlocutory Relief' 'payment Into Court' 'ex Parte Orders' 'natural Justice' 'jurisdiction of Adjudicator']
['administrative Law' 'building and Construction' 'civil Procedure'] ['security of Payment Adjudication' 'interlocutory Relief' 'payment Into Court' 'ex Parte Orders' 'natural Justice' 'jurisdiction of Adjudicator']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Administrative Law List Proceedings Challenging an Adjudication Under the Building and Construction Industry Security of Payment Act, 1999 / Interlocutory Motion Following an Ex Parte Restraint Order

Legal Issues

  1. 1 ['Whether the second defendant should be ordered on an interlocutory basis to pay into court money received through Local Court enforcement of the adjudication determination.' 'Whether the second defendant should alternatively be restrained from reducing available credit in its bank account below $34,617.' 'Whether the ex parte order made on 30 March 2005 should be discharged.' 'Whether the Court should compel the second defendant to consent to a stay of Local Court proceedings.']

Ratio Decidendi

Because the final challenges to the adjudication raised genuine issues but could not be resolved on the interlocutory motion, and because the second defendant had received and banked the Local Court cheque before becoming aware of the ex parte order with no evidence of bad faith, the Court could not presume the plaintiff would ultimately succeed and declined to order payment into court or impose equivalent restraints. The earlier ex parte order was ineffectual and was discharged.

Court Disposition

Interlocutory relief refused; ex parte order discharged; matter listed for directions; costs reserved.

Orders

  • ['The order made ex parte in this court on 30 March 2005 is discharged.' 'The relief sought in para 2 of the notice of motion filed on 30 March 2005 is refused.' 'The matter is to be listed for directions on 2 June 2005.' 'Costs of the motion are reserved.']