Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69

The March Claim could not found summary judgment for the amounts already adjudicated. Allsop P held that the second claim was in respect of the same reference date and was prohibited by s 13(5), so it was not a payment claim under the Act. Macfarlan JA held that the Act gives adjudication determinations sufficient finality for issue estoppel: the issues relevant to Dualcorp's claimed progress payments in the first four invoices had already been determined, and s 15 did not bar Remo from raising that answer. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
15 April 2009
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Summary Judgment Under the Building and Construction Industry Security of Payment Act 1999 / Court of Appeal From Decision of Quirk DCJ in the District Court Declining to Enter Summary Judgment for the Full Amount Claimed
Outcome
Leave to appeal granted; appeal dismissed; applicant/appellant ordered to pay the respondent's costs of the leave application and of the appeal.
Legal Topics
['building and Construction Industry Security of Payment Act 1999' 'progress Payment Claims' 'reference Dates' 'adjudication Determinations' 'issue Estoppel' 'abuse of Process' 'summary Judgment']
['contracts' 'building and Construction' 'estoppel' 'civil Procedure'] ['building and Construction Industry Security of Payment Act 1999' 'progress Payment Claims' 'reference Dates' 'adjudication Determinations' 'issue Estoppel' 'abuse of Process' 'summary Judgment']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Summary Judgment Under the Building and Construction Industry Security of Payment Act 1999 / Court of Appeal From Decision of Quirk DCJ in the District Court Declining to Enter Summary Judgment for the Full Amount Claimed

Legal Issues

  1. 1 ["Whether a claimant dissatisfied with an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 may serve another payment claim and seek redetermination of the same issues." 'Whether the March Claim was precluded by ss 13(5) and 13(6) of the Act because it was a second payment claim in respect of the same reference date.' 'Whether s 15(4)(b) prevented Remo from raising defences based on res judicata, issue estoppel or abuse of process.' "Whether an adjudicator's determination under the Act has sufficient finality to give rise to issue estoppel."]

Ratio Decidendi

The March Claim could not found summary judgment for the amounts already adjudicated. Allsop P held that the second claim was in respect of the same reference date and was prohibited by s 13(5), so it was not a payment claim under the Act. Macfarlan JA held that the Act gives adjudication determinations sufficient finality for issue estoppel: the issues relevant to Dualcorp's claimed progress payments in the first four invoices had already been determined, and s 15 did not bar Remo from raising that answer. The appeal was therefore dismissed.

Court Disposition

Leave to appeal granted; appeal dismissed; applicant/appellant ordered to pay the respondent's costs of the leave application and of the appeal.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.' "The applicant/appellant to pay the respondent's costs of the leave application and of the appeal."]