Hanave Pty Ltd -v- Nahas Construction (NSW) Pty Limited [2012] NSWSC 888

Hanave Pty Ltd -v- Nahas Construction (NSW) Pty Limited [2012] NSWSC 888

There was no contravention of s 26C of the Act because the discharge of the obligation resulted from a court order for payment out of monies in Court, not a voluntary act by Hanave after receiving Waco’s payment withholding request. Therefore, Hanave did not become jointly and severally liable with Nahas to pay Waco.

Parties
Plaintiff: Hanave Pty Ltd ACN 001 416 226; First Defendant: Nahas Construction (NSW) Pty Limited ACN 124 452 786; Second Defendant: Waco Kwikform Ltd ACN 002 835 396; Third Defendant: Deputy Commissioner of Taxation; Fourth Defendant: BWE Electrical Pty Ltd ACN 108 762 607; Fifth Defendant: Pipeline Plumbing Developments Pty Ltd ACN 128 609 162
Jurisdiction
Australia
Judgment Date
30 July 2012
Procedural Posture
Principal Judgment / Ex Tempore Judgment on Contest Between Plaintiff and Second Defendant Regarding Payment Out of Monies in Court
Outcome
Application by Waco against Hanave dismissed; no contravention found.
Legal Topics
Security of Payment, Division 2 a Payments, Obligations of Principal Contractor, Retention of Money and Liability
Building and Construction Security of Payment Division 2 a Payments Obligations of Principal Contractor Retention of Money and Liability

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Parties

Hanave Pty Ltd ACN 001 416 226

Plaintiff

Nahas Construction (NSW) Pty Limited ACN 124 452 786

First Defendant

Waco Kwikform Ltd ACN 002 835 396

Second Defendant

Deputy Commissioner of Taxation

Third Defendant

BWE Electrical Pty Ltd ACN 108 762 607

Fourth Defendant

Pipeline Plumbing Developments Pty Ltd ACN 128 609 162

Fifth Defendant

Procedural Posture

Principal Judgment / Ex Tempore Judgment on Contest Between Plaintiff and Second Defendant Regarding Payment Out of Monies in Court

Legal Issues

  1. 1 Whether the payment of monies in Court to the first defendant contravened requirements under Division 2A of the Building and Construction Industry Security of Payment Act 1999 (NSW)
  2. 2 Whether plaintiff became jointly and severally liable with first defendant for a debt to the second defendant under s 26C

Ratio Decidendi

There was no contravention of s 26C of the Act because the discharge of the obligation resulted from a court order for payment out of monies in Court, not a voluntary act by Hanave after receiving Waco’s payment withholding request. Therefore, Hanave did not become jointly and severally liable with Nahas to pay Waco.

Court Disposition

Application by Waco against Hanave dismissed; no contravention found.