Proactive Building Solutions v Mackenzie Keck [2013] NSWSC 1500

Proactive Building Solutions v Mackenzie Keck [2013] NSWSC 1500

A contractual clause purporting to require disputes under a construction contract governed by the Security of Payment Act to be determined exclusively in a foreign court and under foreign law is, to the extent that it would exclude, modify, or restrict the operation of the Act or the Contractors Debts Act, void pursuant to 'no contracting out' provisions. Therefore, the application for a stay based on such a clause must be dismissed.

Jurisdiction
Australia
Judgment Date
01 October 2013
Procedural Posture
Application (interlocutory) / Hearing of Amended Notice of Motion for Permanent Stay and Leave to Withdraw Appearance
Outcome
Application for permanent stay dismissed with costs.
Legal Topics
['construction Contracts' 'conflict of Laws' 'jurisdiction Agreements' 'statutory Rights Under Building and Construction Industry Security of Payment Act' 'no Contracting Out Provisions']
['equity' 'building and Construction'] ['construction Contracts' 'conflict of Laws' 'jurisdiction Agreements' 'statutory Rights Under Building and Construction Industry Security of Payment Act' 'no Contracting Out Provisions']

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Procedural Posture

Application (interlocutory) / Hearing of Amended Notice of Motion for Permanent Stay and Leave to Withdraw Appearance

Legal Issues

  1. 1 ['Whether contractual clauses selecting a foreign law and exclusive jurisdiction of foreign courts are void insofar as they conflict with the Building and Construction Industry Security of Payment Act 1999 (NSW) and Contractors Debts Act 1997 (NSW)' 'Whether a permanent stay should be granted in favour of proceedings in England']

Ratio Decidendi

A contractual clause purporting to require disputes under a construction contract governed by the Security of Payment Act to be determined exclusively in a foreign court and under foreign law is, to the extent that it would exclude, modify, or restrict the operation of the Act or the Contractors Debts Act, void pursuant to 'no contracting out' provisions. Therefore, the application for a stay based on such a clause must be dismissed.

Court Disposition

Application for permanent stay dismissed with costs.

Orders

  • ["Defendant's amended notice of motion dismissed with costs." 'Exhibits on the application to be handed out.']