Brian Leigh Smith & Anor v Coastivity Pty Ltd [2008] NSWSC 313

Brian Leigh Smith & Anor v Coastivity Pty Ltd [2008] NSWSC 313

Coastivity did not undertake under the deed to carry out construction work or to supply related goods and services within the Act. Its project coordination, management and supervision obligations involved coordinating or managing others who might provide listed services, but did not amount to Coastivity itself undertaking to provide those services. Alternatively, if the deed were a construction contract, the consideration payable to Coastivity was its share of any project profit or loss, which was calculated otherwise than by reference to the value of any services supplied, so s 7(2)(c) excluded the Act. The adjudication determination was therefore void, and no discretionary circumstances...

Jurisdiction
Australia
Judgment Date
11 April 2008
Procedural Posture
Proceedings in the Technology & Construction List Seeking Declaratory and Injunctive Relief Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Principal Judgment After Hearing
Outcome
The Owners made good their claim to declaratory and injunctive relief. Coastivity failed to establish discretionary grounds for refusing that relief. The Court made a declaration and an injunction, and reserved costs for further argument.
Legal Topics
['adjudication Determination' 'construction Contract' 'related Goods and Services' 'calculation of Consideration' 'declaratory Relief' 'injunctive Relief' 'discretion']
['building and Construction' 'security of Payment' 'equity'] ['adjudication Determination' 'construction Contract' 'related Goods and Services' 'calculation of Consideration' 'declaratory Relief' 'injunctive Relief' 'discretion']

Case Brief

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Procedural Posture

Proceedings in the Technology & Construction List Seeking Declaratory and Injunctive Relief Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether under the deed Coastivity undertook to supply related goods and services for another party.' 'Whether under the deed the consideration for any related goods and services was to be calculated other than by reference to the value of those goods and services supplied.' 'Whether, if the Act did not apply or the determination was void, there were discretionary grounds for refusing declaratory and injunctive relief to the Owners.']

Ratio Decidendi

Coastivity did not undertake under the deed to carry out construction work or to supply related goods and services within the Act. Its project coordination, management and supervision obligations involved coordinating or managing others who might provide listed services, but did not amount to Coastivity itself undertaking to provide those services. Alternatively, if the deed were a construction contract, the consideration payable to Coastivity was its share of any project profit or loss, which was calculated otherwise than by reference to the value of any services supplied, so s 7(2)(c) excluded the Act. The adjudication determination was therefore void, and no discretionary circumstances...

Court Disposition

The Owners made good their claim to declaratory and injunctive relief. Coastivity failed to establish discretionary grounds for refusing that relief. The Court made a declaration and an injunction, and reserved costs for further argument.

Orders

  • ['A declaration was made in accordance with prayer one of the summons.' 'An order was made in accordance with prayer two of the summons, restraining Coastivity from enforcing its rights under the determination or the judgment founded on it.' 'The Court will hear the parties on costs.']