Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53

Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53

The appeal was dismissed because the builder was not obliged to give the developer notice that the adjudication certificate had been filed as a judgment before enforcing it, and s 25(4) did not confer a statutory stay or put the developer in a better position than other judgment debtors. The mere commencement of s 69 proceedings challenging the adjudication determination, without any stay, injunction, undertaking request, or foreshadowed stay application, did not require disclosure on the ex parte garnishee application in the circumstances. The developer had not taken timely steps to protect its position and produced no evidence that the builder would be unable to repay the money, so no...

Jurisdiction
Australia
Judgment Date
23 March 2017
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Enforcement of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) by Judgment Debt and Garnishee Order / Court of Appeal From the Supreme Court, Equity Division Judgment Refusing Relief on a Notice of Motion Filed on 6 February 2017
Outcome
Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs in the Court of Appeal.
Legal Topics
['security of Payment Adjudication Determinations' 'filing Adjudication Certificate as Judgment Debt' 'garnishee Orders' 'ex Parte Applications' 'duty of Candour' 'judicial Review for Jurisdictional Error' 'discretionary Equitable Relief']
['building and Construction' 'civil Procedure'] ['security of Payment Adjudication Determinations' 'filing Adjudication Certificate as Judgment Debt' 'garnishee Orders' 'ex Parte Applications' 'duty of Candour' 'judicial Review for Jurisdictional Error' 'discretionary Equitable Relief']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Enforcement of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) by Judgment Debt and Garnishee Order / Court of Appeal From the Supreme Court, Equity Division Judgment Refusing Relief on a Notice of Motion Filed on 6 February 2017

Legal Issues

  1. 1 ['Whether the builder was required to notify the developer that an adjudication certificate had been filed as a judgment debt before taking steps to enforce it.' 'Whether s 25(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) created or supported a right to notice or a statutory stay before enforcement.' 'Whether, in applying ex parte for a garnishee order, the builder was required to disclose that the developer had commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) challenging the validity of the adjudication determination.' 'Whether the primary judge erred in refusing to set aside the garnishee order and order repayment of the garnisheed amount.']

Ratio Decidendi

The appeal was dismissed because the builder was not obliged to give the developer notice that the adjudication certificate had been filed as a judgment before enforcing it, and s 25(4) did not confer a statutory stay or put the developer in a better position than other judgment debtors. The mere commencement of s 69 proceedings challenging the adjudication determination, without any stay, injunction, undertaking request, or foreshadowed stay application, did not require disclosure on the ex parte garnishee application in the circumstances. The developer had not taken timely steps to protect its position and produced no evidence that the builder would be unable to repay the money, so no...

Court Disposition

Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs in the Court of Appeal.

Orders

  • ['Grant the applicant leave to appeal from the judgment in the Equity Division refusing relief on the notice of motion filed in the Division on 6 February 2017.' 'Direct that the applicant file within 7 days a notice of appeal in the form of the draft notice of appeal contained in the white folder.' 'Dismiss the...