Marques Group Pty Ltd v Parkview Constructions Pty Ltd [2023] NSWSC 625

Marques Group Pty Ltd v Parkview Constructions Pty Ltd [2023] NSWSC 625

The defendant's Australian Consumer Law defence, based on alleged misleading or deceptive representations in subcontractor statements and statutory declarations that allegedly induced the payment schedules, was not so clearly untenable that it could not possibly succeed. Bitannia permitted such a defence to be raised to a SOPA judgment claim without a cross-claim, and the closely analogous Winslow decision supported the existence of a real question to be tried. Accordingly, the plaintiff was not entitled to summary judgment.

Jurisdiction
Australia
Judgment Date
13 June 2023
Procedural Posture
Civil Procedure Motion for Summary Judgment in Respect of Payment Schedules Served Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Amended Motion Filed on 21 April 2023; Decision and Orders Made on 13 June 2023
Outcome
Motion dismissed with costs.
Legal Topics
['summary Judgment' 'payment Claims and Payment Schedules' 'misleading or Deceptive Conduct' 'statutory Debt' 'solvency Representations' 'subcontractor Statements and Statutory Declarations']
['civil Procedure' 'building and Construction' 'security of Payment' 'australian Consumer Law'] ['summary Judgment' 'payment Claims and Payment Schedules' 'misleading or Deceptive Conduct' 'statutory Debt' 'solvency Representations' 'subcontractor Statements and Statutory Declarations']

Case Brief

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Procedural Posture

Civil Procedure Motion for Summary Judgment in Respect of Payment Schedules Served Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Amended Motion Filed on 21 April 2023; Decision and Orders Made on 13 June 2023

Legal Issues

  1. 1 ['Whether the plaintiff subcontractor should obtain summary judgment for the amounts scheduled in two payment schedules as a statutory debt under section 16(2)(a)(i) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether the defendant contractor had an arguable defence that the payment schedules were issued in reliance on misleading or deceptive representations in Subcontractor's Statements and statutory declarations concerning payment of employees, subcontractors and solvency." 'Whether an Australian Consumer Law defence of the kind recognised in Bitannia Pty Ltd v Parkline Constructions Pty Ltd could be relied on without a cross-claim or specifically articulated relief under sections 237 or 243 of the Australian Consumer Law.' 'Whether the defence was so clearly untenable that it could not possibly succeed.']

Ratio Decidendi

The defendant's Australian Consumer Law defence, based on alleged misleading or deceptive representations in subcontractor statements and statutory declarations that allegedly induced the payment schedules, was not so clearly untenable that it could not possibly succeed. Bitannia permitted such a defence to be raised to a SOPA judgment claim without a cross-claim, and the closely analogous Winslow decision supported the existence of a real question to be tried. Accordingly, the plaintiff was not entitled to summary judgment.

Court Disposition

Motion dismissed with costs.

Orders

  • ['Dismiss the amended motion filed on 21 April 2023.' "Plaintiff to pay the defendant's costs of the motion." 'List the matter for directions in the Technology and Construction List on 16 June 2023.']