Collins and Turner Pty Ltd v Landini & Landini [2018] NSWLC 22

Collins and Turner Pty Ltd v Landini & Landini [2018] NSWLC 22

The Notice of Motion to strike out the Defence is dismissed because the factual and legal disputes concerning whether the contract involved residential building work, applicability of the Security of Payment Act, compliance with statutory payment claim requirements, and potential milestone reference dates are sufficiently arguable and require determination at trial; the Defence is not so obviously untenable as to warrant summary dismissal under the Rules.

Jurisdiction
Australia
Judgment Date
12 December 2018
Procedural Posture
Civil / Interlocutory Application—motion to Strike Out Defence
Outcome
Notice of Motion dismissed; Defence is not struck out.
Legal Topics
['application of Building and Construction Industry Security of Payment Act 1999' 'application of Home Building Act 1989' 'strike Out Pleadings' 'summary Dismissal' 'construction Contract' 'residential Building Work']
['contract Law' 'civil Procedure'] ['application of Building and Construction Industry Security of Payment Act 1999' 'application of Home Building Act 1989' 'strike Out Pleadings' 'summary Dismissal' 'construction Contract' 'residential Building Work']

Case Brief

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Procedural Posture

Civil / Interlocutory Application—motion to Strike Out Defence

Legal Issues

  1. 1 ['Whether the contract between the parties was a construction contract to which the Building and Construction Industry Security of Payment Act 1999 applies' 'Whether the contract was for residential building work to which the Home Building Act 1989 applies' 'Whether the contract was a construction contract connected with an exempt residential construction contract' "Whether the invoice served was a valid Payment Claim under the Security of Payment Act, triggering 'pay now litigate later' provisions" 'Whether the Defence should be struck out or issues should proceed to trial']

Ratio Decidendi

The Notice of Motion to strike out the Defence is dismissed because the factual and legal disputes concerning whether the contract involved residential building work, applicability of the Security of Payment Act, compliance with statutory payment claim requirements, and potential milestone reference dates are sufficiently arguable and require determination at trial; the Defence is not so obviously untenable as to warrant summary dismissal under the Rules.

Court Disposition

Notice of Motion dismissed; Defence is not struck out.

Orders

  • ['The Notice of Motion is dismissed.']