Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2024] NSWSC 1271

Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2024] NSWSC 1271

Although the payment claim and s 17(2) notice were not served in accordance with s 31(1)(d) Security of Payment Act and only came to the claimants’ attention on 11 June 2024 (thus the adjudication application was filed prematurely), this was not an error voiding the determination because the adjudicator made a bona fide attempt to resolve the dispute and addressing this question is not an essential pre-condition to jurisdiction. The Home Building Act's licensing and insurance requirements, even if breached, do not prevent enforcement under the Security of Payment Act because recovery under that Act is a statutory remedy, not a right of action barred by s 94 HBA.

Parties
Plaintiffs: Claire Rewais & Osama Rewais t/as McVitty Grove; First Defendant: BPB Earthmoving Pty Ltd; Second Defendant: Christopher Larcos
Jurisdiction
Australia
Judgment Date
10 October 2024
Procedural Posture
Application for Relief (summons) Under Security of Payment and Home Building Legislation / Principal Judgment on Final Relief
Outcome
Plaintiffs' application dismissed
Legal Topics
Service Under Building and Construction Industry Security of Payment Act 1999 (nsw), Application of Home Building Act 1989 (nsw) to Security of Payment Act Determinations, Enforcement of Adjudication Determinations, Meaning of 'right of Action' Under Home Building Act, Licensing and Insurance Requirements for Residential Building Work
Building and Construction Law Adjudication Contract Law Service Under Building and Construction Industry Security of Payment Act 1999 (nsw) Application of Home Building Act 1989 (nsw) to Security of Payment Act Determinations Enforcement of Adjudication Determinations Meaning of 'right of Action' Under Home Building Act Licensing and Insurance Requirements for Residential Building Work

Case Brief

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Parties

Claire Rewais & Osama Rewais t/as McVitty Grove

Plaintiffs

BPB Earthmoving Pty Ltd

First Defendant

Christopher Larcos

Second Defendant

Procedural Posture

Application for Relief (summons) Under Security of Payment and Home Building Legislation / Principal Judgment on Final Relief

Legal Issues

  1. 1 Whether the payment claim was validly served under the Security of Payment Act 1999 (NSW)
  2. 2 Whether the adjudication application was filed out of time and whether the adjudication determination was void for want of jurisdiction
  3. 3 Whether the Home Building Act 1989 (NSW) prevents enforcement of an adjudication determination where the builder is unlicensed or uninsured

Ratio Decidendi

Although the payment claim and s 17(2) notice were not served in accordance with s 31(1)(d) Security of Payment Act and only came to the claimants’ attention on 11 June 2024 (thus the adjudication application was filed prematurely), this was not an error voiding the determination because the adjudicator made a bona fide attempt to resolve the dispute and addressing this question is not an essential pre-condition to jurisdiction. The Home Building Act's licensing and insurance requirements, even if breached, do not prevent enforcement under the Security of Payment Act because recovery under that Act is a statutory remedy, not a right of action barred by s 94 HBA.

Court Disposition

Plaintiffs' application dismissed

Orders

  • The summons filed 15 July 2024 by the plaintiffs is dismissed.
  • The plaintiffs are to pay the defendant's costs of the proceedings.