Johnston v Lianda Constructions Pty Ltd [2014] NSWSC 1178

Johnston v Lianda Constructions Pty Ltd [2014] NSWSC 1178

There was no triable issue as the contract was admitted and oral variations could not constitute a defence in the absence of a payment schedule under the Building and Construction Industry Security of Payment Act. The Magistrate correctly granted summary judgment. Leave to appeal costs was refused as the matter did not raise important principles or substantial injustice.

Parties
Plaintiff/cross Defendant: Peter Martin Johnston; Defendant/cross Claimant: Lianda Constructions Pty Ltd ATF The Alljaz Trust
Jurisdiction
Australia
Judgment Date
27 August 2014
Procedural Posture
Appeal From Local Court / Judgment on Appeal and Cross Appeal
Outcome
Appeal dismissed; cross appeal dismissed; decision of Magistrate affirmed
Legal Topics
Summary Judgment, Security of Payment, Payment Claims, Costs on Appeal
Construction Law Civil Procedure Summary Judgment Security of Payment Payment Claims Costs on Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Peter Martin Johnston

Plaintiff/cross Defendant

Lianda Constructions Pty Ltd ATF The Alljaz Trust

Defendant/cross Claimant

Procedural Posture

Appeal From Local Court / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether the Magistrate properly applied the test for summary judgment
  2. 2 Whether there was a triable issue as to the terms of the construction contract
  3. 3 Whether Lianda Constructions had statutory entitlement to make a payment claim under s 13(1) of the Act

Ratio Decidendi

There was no triable issue as the contract was admitted and oral variations could not constitute a defence in the absence of a payment schedule under the Building and Construction Industry Security of Payment Act. The Magistrate correctly granted summary judgment. Leave to appeal costs was refused as the matter did not raise important principles or substantial injustice.

Court Disposition

Appeal dismissed; cross appeal dismissed; decision of Magistrate affirmed

Orders

  • Extension of time to file the summons is granted
  • Leave to appeal is granted