Shorten v David Hurst Constructions Pty Ltd (ACN 107 042 688) [2008] NSWCA 134

Shorten v David Hurst Constructions Pty Ltd (ACN 107 042 688) [2008] NSWCA 134

Section 7(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) excludes only contracts for residential building work on that part of premises in which the contracting party resides or proposes to reside. It does not apply where the contract is for building multiple units, only one of which is to be used by the party as a residence. The ordinary meaning of the provision, as confirmed by legislative history and Minister’s Second Reading Speech, does not allow the exclusion to apply to the whole contract in such cases.

Parties
Appellant: Richard William Shorten; Appellant: Lorraine Shorten; Respondent: David Hurst Constructions Pty Ltd (ACN 107 042 688)
Jurisdiction
Australia
Judgment Date
18 June 2008
Procedural Posture
Appeal / Court of Appeal, Decision on Appeal From Summary Judgment in Supreme Court
Outcome
Appeal dismissed with costs
Legal Topics
Building Contracts, Statutory Exclusion, Use of Extrinsic Materials in Statutory Interpretation
Contract Law Construction Law Statutory Interpretation Building Contracts Statutory Exclusion Use of Extrinsic Materials in Statutory Interpretation

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Parties

Richard William Shorten

Appellant

Lorraine Shorten

Appellant

David Hurst Constructions Pty Ltd (ACN 107 042 688)

Respondent

Procedural Posture

Appeal / Court of Appeal, Decision on Appeal From Summary Judgment in Supreme Court

Legal Issues

  1. 1 Whether s 7(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) excludes from the Act a construction contract for multiple residential units where the party intends to reside in one unit
  2. 2 Proper construction and application of s 7(2)(b) with respect to mixed-use contracts and communication of intention to reside

Ratio Decidendi

Section 7(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW) excludes only contracts for residential building work on that part of premises in which the contracting party resides or proposes to reside. It does not apply where the contract is for building multiple units, only one of which is to be used by the party as a residence. The ordinary meaning of the provision, as confirmed by legislative history and Minister’s Second Reading Speech, does not allow the exclusion to apply to the whole contract in such cases.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs