BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238

BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238

Section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) does not require the claimant to have a bona fide belief in its entitlement; merit is for adjudication process. Section 15(4)(b)(ii) does not preclude a defence based on misleading or deceptive conduct under the Trade Practices Act. Alternatively, to the extent the Act would preclude such a defence, it is inoperative due to inconsistency with the Trade Practices Act under s 109 of the Constitution.

Parties
First Appellant: Bitannia Pty Ltd; Second Appellant: Rossfield Nominees (ACT) Pty Ltd; Respondent: Parkline Constructions Pty Ltd; Intervenor: Attorney-General of NSW
Jurisdiction
Australia
Judgment Date
28 August 2006
Procedural Posture
Appeal / Judgment on Appeal From District Court
Outcome
Appeal allowed; judgment below set aside; matter remitted for determination in accordance with Court of Appeal's judgment.
Legal Topics
Progress Payments, Security of Payment Legislation, Misleading and Deceptive Conduct, Section 52 Trade Practices Act, Section 109 Inconsistency, Cross Claims and Defences, Equitable Set Off
Building and Construction Trade Practices Constitutional Law Practice and Procedure Progress Payments Security of Payment Legislation Misleading and Deceptive Conduct Section 52 Trade Practices Act +3 more

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Parties

Bitannia Pty Ltd

First Appellant

Rossfield Nominees (ACT) Pty Ltd

Second Appellant

Parkline Constructions Pty Ltd

Respondent

Attorney-General of NSW

Intervenor

Procedural Posture

Appeal / Judgment on Appeal From District Court

Legal Issues

  1. 1 Whether a bona fide belief in entitlement is required for a valid payment claim under s 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW)
  2. 2 Whether s 15(4)(b)(ii) of that Act precludes reliance on a defence of misleading and deceptive conduct
  3. 3 Whether s 15(4)(b)(ii) is invalid due to inconsistency with Commonwealth law (Trade Practices Act) where it precludes such defence

Ratio Decidendi

Section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW) does not require the claimant to have a bona fide belief in its entitlement; merit is for adjudication process. Section 15(4)(b)(ii) does not preclude a defence based on misleading or deceptive conduct under the Trade Practices Act. Alternatively, to the extent the Act would preclude such a defence, it is inoperative due to inconsistency with the Trade Practices Act under s 109 of the Constitution.

Court Disposition

Appeal allowed; judgment below set aside; matter remitted for determination in accordance with Court of Appeal's judgment.

Orders

  • Appeal allowed.
  • Orders made by the District Court on 3 March 2006 in matter 1998 of 2005 set aside.