Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (No 2) [2019] NSWCA 64

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) (No 2) [2019] NSWCA 64

Ostwald, having obtained judgment for the unpaid Scheduled Amount and entitlement under the Security of Payment Act, achieved greater success than Seymour; therefore Seymour is to pay proportionate costs. The adjudication determination was invalid, but Ostwald’s claim for the Scheduled Amount succeeded notwithstanding liquidation.

Parties
Appellant: Seymour Whyte Constructions Pty Ltd; First Respondent: Ostwald Bros Pty Ltd (In liquidation); Second Respondent: Doron Rivlin; Third Respondent: Adjudicate Today Pty Limited
Jurisdiction
Australia
Judgment Date
12 April 2019
Procedural Posture
Appeal and Cross Appeal / Court of Appeal Judgment
Outcome
Appeal allowed in part; cross-appeal allowed in part.
Legal Topics
Costs, Security of Payment, Rectification, Liquidation
Construction Law Civil Procedure Costs Security of Payment Rectification Liquidation

Case Brief

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Parties

Seymour Whyte Constructions Pty Ltd

Appellant

Ostwald Bros Pty Ltd (In liquidation)

First Respondent

Doron Rivlin

Second Respondent

Adjudicate Today Pty Limited

Third Respondent

Procedural Posture

Appeal and Cross Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Entitlement to costs where each party has partial success
  2. 2 Validity of adjudication application under the Building and Construction Industry Security of Payment Act
  3. 3 Entitlement to pursue debt recovery when in liquidation

Ratio Decidendi

Ostwald, having obtained judgment for the unpaid Scheduled Amount and entitlement under the Security of Payment Act, achieved greater success than Seymour; therefore Seymour is to pay proportionate costs. The adjudication determination was invalid, but Ostwald’s claim for the Scheduled Amount succeeded notwithstanding liquidation.

Court Disposition

Appeal allowed in part; cross-appeal allowed in part.

Orders

  • Set aside orders 5, 6, 7, 8, and 10 of orders made on 2 May 2018 and replace with: certiorari quashing determination of Second Defendant dated 1 November 2017.
  • Judgment for Ostwald Bros Pty Ltd against Seymour Whyte Constructions Pty Ltd for $2,505,237.58 plus interest under s 101 of Civil Procedure Act 2005 (NSW).