Seabreeze Manly v Toposu [2014] NSWSC 1097

Seabreeze Manly v Toposu [2014] NSWSC 1097

There was an arrangement, amounting to a construction contract under the Security of Payment Act, between Seabreeze and Toposu. This arrangement was established by Seabreeze’s authorisation and instruction for subcontractors to be paid directly and the conduct of payment, regardless of formal invoice directions. The legal test is satisfied for a construction contract as per the Act, and thus the challenge to the adjudicator’s determination fails.

Jurisdiction
Australia
Judgment Date
08 August 2014
Procedural Posture
Summons / Judgment at First Instance
Outcome
Summons dismissed with costs. Money in court to be paid out to first defendant forthwith. Costs to be assessed on the indemnity basis after 28 May 2013.
Legal Topics
['payment Claims' 'construction Contract' 'security of Payment Act' 'costs – Calderbank Offers']
['building and Construction Law' 'civil Procedure'] ['payment Claims' 'construction Contract' 'security of Payment Act' 'costs – Calderbank Offers']

Case Brief

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Procedural Posture

Summons / Judgment at First Instance

Legal Issues

  1. 1 ["Whether there was a 'construction contract' or 'arrangement' under the Building and Construction Industry Security of Payment Act 1999 (NSW) between Seabreeze and Toposu." 'Entitlement to payment claims under the Act.' 'Whether costs should be assessed on an indemnity basis due to Calderbank offers.']

Ratio Decidendi

There was an arrangement, amounting to a construction contract under the Security of Payment Act, between Seabreeze and Toposu. This arrangement was established by Seabreeze’s authorisation and instruction for subcontractors to be paid directly and the conduct of payment, regardless of formal invoice directions. The legal test is satisfied for a construction contract as per the Act, and thus the challenge to the adjudicator’s determination fails.

Court Disposition

Summons dismissed with costs. Money in court to be paid out to first defendant forthwith. Costs to be assessed on the indemnity basis after 28 May 2013.

Orders

  • ['Summons dismissed with costs.' 'Exhibits to be returned.' 'Money brought into court by plaintiff to be paid forthwith to first defendant.' 'Costs payable by plaintiff to first defendant to be assessed on an indemnity basis after 28 May 2013.']