Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371

Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371

Plaintiff's payment claims were not accompanied by a supporting statement in the prescribed form when served, contrary to s 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW), and thus were not validly served under s 14(4)(a). Consequently, the plaintiff was not entitled to summary...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
07 April 2016
Procedural Posture
Application for Summary Judgment / Decision on Motions for Summary Judgment and Stay of Execution
Outcome
Plaintiff's application for summary judgment dismissed; defendant's application for stay of execution dismissed; no order as to costs of motions; orders made as to potential further submissions on costs; further directions hearing set.
Legal Topics
['summary Judgment' 'progress Payments' 'payment Claims' 'supporting Statements' 'set Off' 'security of Payment Act' 'service of Documents']
['building and Construction' 'equity' 'civil Procedure'] ['summary Judgment' 'progress Payments' 'payment Claims' 'supporting Statements' 'set Off' 'security of Payment Act' 'service of Documents']

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Procedural Posture

Application for Summary Judgment / Decision on Motions for Summary Judgment and Stay of Execution

Legal Issues

  1. 1 ['Whether the plaintiff is entitled to summary judgment for unpaid progress payments under the Building and Construction Industry Security of Payment Act 1999 (NSW) where payment claims were served without a compliant supporting statement' 'Whether a defendant may withdraw an admission regarding the existence of circumstances in s 15(1) of the Act' 'Whether service contrary to s 13(7) constitutes valid service for the purposes of s 14(4)(a) of the Act' 'Costs consequences of withdrawal of admission']

Ratio Decidendi

Plaintiff's payment claims were not accompanied by a supporting statement in the prescribed form when served, contrary to s 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW), and thus were not validly served under s 14(4)(a). Consequently, the plaintiff was not entitled to summary judgment as the statutory requirements were not met.

Court Disposition

Plaintiff's application for summary judgment dismissed; defendant's application for stay of execution dismissed; no order as to costs of motions; orders made as to potential further submissions on costs; further directions hearing set.

Orders

  • ["Dismiss the plaintiff's notice of motion for summary judgment." "Dismiss the defendant's notice of motion for a stay of execution." 'Make no order as to the costs of either of the motions in orders 1 and 2.' 'Grant leave to each party to apply to vary order 3 by written submissions within seven days, with...