Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust v DSD Builders Pty Ltd [2018] NSWSC 984

Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust v DSD Builders Pty Ltd [2018] NSWSC 984

In the absence of evidence as to the financial position of the unit holders and as to why they cannot advance funds to the plaintiff, there is no basis to exercise discretion to waive the usual requirement that the plaintiff pay into court the adjudicated amount.

Jurisdiction
Australia
Judgment Date
26 June 2018
Procedural Posture
Challenge to Adjudicator's Determination / Interlocutory Application/order
Outcome
Plaintiff to pay adjudicated amount into court by 2 July 2018; matter set down for hearing on 6 August 2018; usual order for hearing
Legal Topics
['security of Payment' 'payment Into Court' 'discretion to Require Payment']
['equity' 'building and Construction'] ['security of Payment' 'payment Into Court' 'discretion to Require Payment']

Case Brief

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Procedural Posture

Challenge to Adjudicator's Determination / Interlocutory Application/order

Legal Issues

  1. 1 ['Whether plaintiff should pay into court the amount of the adjudication determination pending resolution of the challenge' 'Whether court should exercise discretion to waive the requirement to pay into court']

Ratio Decidendi

In the absence of evidence as to the financial position of the unit holders and as to why they cannot advance funds to the plaintiff, there is no basis to exercise discretion to waive the usual requirement that the plaintiff pay into court the adjudicated amount.

Court Disposition

Plaintiff to pay adjudicated amount into court by 2 July 2018; matter set down for hearing on 6 August 2018; usual order for hearing

Orders

  • ['Plaintiff to cause the amount of the adjudication determination ($265,510.11) to be paid into court by 2 July 2018' "Provision for parties' evidence to be served" 'Matter fixed for hearing on 6 August 2018' 'Usual order for hearing']