Brodyn Pty Ltd v Y A Welding Pty Ltd [2006] NSWLC 25

Brodyn Pty Ltd v Y A Welding Pty Ltd [2006] NSWLC 25

The plaintiff was not a person who had undertaken to carry out construction work under the contract for the purposes of s 8 of the Building and Construction Industry Security of Payment Act 1999. Exercising a contractual right to remedy default does not create an obligation or undertaking in the sense intended by the Act. Thus, the plaintiff had no entitlement to make a claim for a progress payment against the defendant under the Act.

Jurisdiction
Australia
Judgment Date
16 June 2006
Procedural Posture
Civil / Notice of Motion to Strike Out Statement of Claim / Summary Judgment Application
Outcome
Plaintiff's Notice of Motion dismissed; Statement of Claim struck out; Plaintiff to pay the defendant's costs on the Notices of Motion, as agreed or as assessed.
Legal Topics
['security of Payment' 'progress Payments' 'construction Contracts' 'contractual Undertakings']
['construction Law' 'civil Procedure'] ['security of Payment' 'progress Payments' 'construction Contracts' 'contractual Undertakings']

Case Brief

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Procedural Posture

Civil / Notice of Motion to Strike Out Statement of Claim / Summary Judgment Application

Legal Issues

  1. 1 ['Is the plaintiff entitled to make a payment claim against the defendant under the Building and Construction Industry Security of Payment Act 1999?' "Does the plaintiff qualify as a person who has 'undertaken to carry out construction work' under the relevant Act and contract to entitle it to a progress payment?"]

Ratio Decidendi

The plaintiff was not a person who had undertaken to carry out construction work under the contract for the purposes of s 8 of the Building and Construction Industry Security of Payment Act 1999. Exercising a contractual right to remedy default does not create an obligation or undertaking in the sense intended by the Act. Thus, the plaintiff had no entitlement to make a claim for a progress payment against the defendant under the Act.

Court Disposition

Plaintiff's Notice of Motion dismissed; Statement of Claim struck out; Plaintiff to pay the defendant's costs on the Notices of Motion, as agreed or as assessed.

Orders

  • ["Order that the plaintiff's Notice of Motion be dismissed." "Order in accordance with paragraph 1 of the defendant's Notice of Motion that the Statement of Claim be struck out." 'Order that the plaintiff pay the costs of the defendant on the Notices of Motion, as agreed or as assessed.']