David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164

David Hurst Constructions Pty Ltd v Shorten [2008] NSWSC 164

Section 7(2)(b) of the Act excludes from the Act only those contracts confined to residential building work on the part of the premises in which the party resides or proposes to reside; contracts also covering other parts are not exempt. The contract in question covered work beyond the part to be occupied, so the Act applied, entitling the plaintiff to summary judgment.

Parties
Plaintiff: David Hurst Constructions Pty Ltd; First Defendant: Richard William Shorten; Second Defendant: Lorraine Shorten
Jurisdiction
Australia
Judgment Date
04 March 2008
Procedural Posture
Summary Judgment Application / Judgment
Outcome
Summary judgment for the plaintiff
Legal Topics
Summary Judgment, Application of Building and Construction Industry Security of Payment Act 1999, Interpretation of S 7(2)(b) of the Act, Residential Building Work, Statutory Construction
Construction Law Contract Law Summary Judgment Application of Building and Construction Industry Security of Payment Act 1999 Interpretation of S 7(2)(b) of the Act Residential Building Work Statutory Construction

Case Brief

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Parties

David Hurst Constructions Pty Ltd

Plaintiff

Richard William Shorten

First Defendant

Lorraine Shorten

Second Defendant

Procedural Posture

Summary Judgment Application / Judgment

Legal Issues

  1. 1 Whether the Building and Construction Industry Security of Payment Act 1999 applies to the contract
  2. 2 Proper construction of s 7(2)(b) of the Act
  3. 3 Whether the contract is excluded because it is for residential building work for premises in which the party proposes to reside

Ratio Decidendi

Section 7(2)(b) of the Act excludes from the Act only those contracts confined to residential building work on the part of the premises in which the party resides or proposes to reside; contracts also covering other parts are not exempt. The contract in question covered work beyond the part to be occupied, so the Act applied, entitling the plaintiff to summary judgment.

Court Disposition

Summary judgment for the plaintiff

Orders

  • Summary judgment to the plaintiff in the amount claimed (subject to costs)
  • Matter of costs to be relisted if not agreed by 4pm 11 March 2008