Olympia Group Pty Ltd v Tyrenian Group Pty Ltd [2010] NSWSC 319

Olympia Group Pty Ltd v Tyrenian Group Pty Ltd [2010] NSWSC 319

Although the payment claim was received by facsimile on 31 January 2010 and the successive-claim point was not an abuse of process on the facts, the contract for the works was between the defendant and Olympia Group (NSW) Pty Limited, not the plaintiffs. Compelling considerations were that Olympia Group (NSW) Pty Limited was the head contractor, paid for the work, and the first plaintiff was not carrying on business in the building and construction industry at the time.

Jurisdiction
Australia
Judgment Date
04 March 2010
Procedural Posture
Proceedings Concerning a Payment Claim Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Ex Tempore Judgment on Plaintiffs' Summons and Defendant's Cross Summons
Outcome
Declaration made for the plaintiffs; restraining order made; defendant's cross-summons dismissed; defendant ordered to pay the plaintiffs' costs.
Legal Topics
['construction Contract' 'payment Claim' 'service by Facsimile' 'successive Payment Claims' 'abuse of Process' 'identity of Contracting Party']
['contracts' 'building and Construction' 'security of Payment'] ['construction Contract' 'payment Claim' 'service by Facsimile' 'successive Payment Claims' 'abuse of Process' 'identity of Contracting Party']

Case Brief

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Procedural Posture

Proceedings Concerning a Payment Claim Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Ex Tempore Judgment on Plaintiffs' Summons and Defendant's Cross Summons

Legal Issues

  1. 1 ['Whether the first plaintiff or Olympia Group (NSW) Pty Limited was party to the construction contract with the defendant within the meaning of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'When the payment claim dated 31 January 2010 was received.' 'Whether service of the payment claim by facsimile on 31 January 2010 was effective service.' 'Whether the payment claim was an abuse of the processes of the Act because it repeated, at least in part, monies claimed under earlier claims.']

Ratio Decidendi

Although the payment claim was received by facsimile on 31 January 2010 and the successive-claim point was not an abuse of process on the facts, the contract for the works was between the defendant and Olympia Group (NSW) Pty Limited, not the plaintiffs. Compelling considerations were that Olympia Group (NSW) Pty Limited was the head contractor, paid for the work, and the first plaintiff was not carrying on business in the building and construction industry at the time.

Court Disposition

Declaration made for the plaintiffs; restraining order made; defendant's cross-summons dismissed; defendant ordered to pay the plaintiffs' costs.

Orders

  • ["Declaration in terms of paragraph 1 of the plaintiffs' summons." "Order in terms of paragraph 3 of the plaintiffs' summons." "Defendant's cross-summons dismissed." "Defendant to pay the plaintiffs' costs of the proceedings."]