Glen Eight v Home Building [2005] NSWSC 907

Glen Eight v Home Building [2005] NSWSC 907

The Court held there is a serious question to be tried regarding both alleged breaches of natural justice and illegality. The balance of convenience favors granting an interlocutory injunction on the condition that the plaintiff provide security for the adjudicated amount, interest, and fees, as the defendants are in liquidation and recovery would otherwise be prejudiced.

Parties
Plaintiff: Glen Eight Pty Ltd; First Defendant: Home Building Pty Ltd (in liq); Second Defendant: Interco Pty Ltd; Third Defendant: Institute of Arbitrators and Mediators Australia; Fourth Defendant: Timothy Sullivan
Jurisdiction
Australia
Judgment Date
06 September 2005
Procedural Posture
Application for Interlocutory Injunction / Hearing and Interlocutory Judgment (ex Tempore)
Outcome
Interlocutory injunction granted on conditions
Legal Topics
Adjudication Determination, Interlocutory Injunctions, Security of Payment, Illegality Under Home Building Act 1989, Breach of Natural Justice, Bona Fide Consideration
Equity Building and Construction Adjudication Determination Interlocutory Injunctions Security of Payment Illegality Under Home Building Act 1989 Breach of Natural Justice Bona Fide Consideration

Case Brief

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Parties

Glen Eight Pty Ltd

Plaintiff

Home Building Pty Ltd (in liq)

First Defendant

Interco Pty Ltd

Second Defendant

Institute of Arbitrators and Mediators Australia

Third Defendant

Timothy Sullivan

Fourth Defendant

Procedural Posture

Application for Interlocutory Injunction / Hearing and Interlocutory Judgment (ex Tempore)

Legal Issues

  1. 1 Whether an interlocutory injunction should be granted to restrain the defendants from applying for an adjudication certificate under the Building and Construction Industry Security of Payment Act 1999
  2. 2 Whether the adjudicator's determination is invalid due to breach of natural justice or lack of bona fide consideration
  3. 3 Whether payment pursuant to the adjudication would involve illegality under the Home Building Act 1989

Ratio Decidendi

The Court held there is a serious question to be tried regarding both alleged breaches of natural justice and illegality. The balance of convenience favors granting an interlocutory injunction on the condition that the plaintiff provide security for the adjudicated amount, interest, and fees, as the defendants are in liquidation and recovery would otherwise be prejudiced.

Court Disposition

Interlocutory injunction granted on conditions

Orders

  • First and second defendants restrained from requesting an adjudication certificate pursuant to section 24 of the Building and Construction Industry Security of Payment Act 1999 in respect of the subject determination until 5pm on 12 September 2005 or further order, on conditions that plaintiff gives undertakings as...
  • Costs of the interlocutory hearing to be plaintiff's costs in the cause.