Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17

Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17

Summary judgment must be refused where there are serious disputed factual issues as to the termination date of the contract, which are determinative of whether the plaintiff is entitled to make the payment claim under the Act—such disputes cannot be resolved at the summary stage.

Jurisdiction
Australia
Judgment Date
16 February 2017
Procedural Posture
Civil / Summary Judgment Application
Outcome
Plaintiff's application for summary judgment dismissed; timetable set for further conduct of proceedings; costs reserved to trial judge.
Legal Topics
['summary Judgment' 'payment Claims' 'termination of Contract' 'building and Construction Industry Security of Payment Act']
['building and Construction Law' 'civil Procedure'] ['summary Judgment' 'payment Claims' 'termination of Contract' 'building and Construction Industry Security of Payment Act']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 ['Whether the 4 October 2016 document is a payment claim within the meaning of s 13(1) of the Act' 'Whether more than one payment claim has been made for the same reference date contrary to s 13(5) of the Act' 'Whether the contract was terminated on 26/27 September 2016 or 26 October 2016 and its impact on entitlement to make payment claims' 'Whether summary judgment is available in light of the disputed factual issues']

Ratio Decidendi

Summary judgment must be refused where there are serious disputed factual issues as to the termination date of the contract, which are determinative of whether the plaintiff is entitled to make the payment claim under the Act—such disputes cannot be resolved at the summary stage.

Court Disposition

Plaintiff's application for summary judgment dismissed; timetable set for further conduct of proceedings; costs reserved to trial judge.

Orders

  • ["The plaintiff's notice of motion for summary judgment is dismissed." 'The costs of the motion are reserved to the trial judge.' "Defendant's Defence in 14 days (21 February 2017)." 'Plaintiff to file any further affidavits/evidence in these proceedings 28 days thereafter (21 March 2017).' "Defendant's...