YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2018] NSWSC 1354

YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2018] NSWSC 1354

YTO failed to prove the fraud case articulated in its List Statement. It did not establish that Innovative's representation that each claimed load was GSW was false, did not establish that Innovative represented $7,000 per load as Innovative's own cost, and did not establish the pleaded redaction case because the unredacted invoice did not show a $145 per load charge. The alternative fraud grounds advanced in submissions were materially different from the articulated List Statement and could not be maintained.

Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Equity Technology and Construction List Proceedings Seeking to Set Aside an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) on the Basis of Fraud / Principal Judgment After Hearing
Outcome
Plaintiff failed to establish that the Determination was obtained by fraud; Plaintiff's Summons dismissed and Plaintiff to pay the First Defendant's costs as agreed or assessed.
Legal Topics
['pleadings and List Statements' 'fraud Allegations' 'security of Payment Adjudication' 'onus and Proof of Fraud' 'technology and Construction List']
['civil Procedure' 'construction Law' 'equity'] ['pleadings and List Statements' 'fraud Allegations' 'security of Payment Adjudication' 'onus and Proof of Fraud' 'technology and Construction List']

Case Brief

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Procedural Posture

Equity Technology and Construction List Proceedings Seeking to Set Aside an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) on the Basis of Fraud / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether YTO strictly articulated and proved that Innovative obtained the adjudication determination by fraud.' 'Whether Innovative falsely represented that each of 66 loads of excavated waste was GSW when it had concluded some loads were VENM or not payable.' 'Whether Innovative falsely claimed $7,000 per load as an additional cost incurred for removal of GSW material.' "Whether Innovative's redaction of Elkordi invoice INV-0243 established fraudulent concealment of information relevant to the adjudication." 'Whether YTO could advance at the hearing a fraud case different from that articulated in its Technology and Construction List Statement.']

Ratio Decidendi

YTO failed to prove the fraud case articulated in its List Statement. It did not establish that Innovative's representation that each claimed load was GSW was false, did not establish that Innovative represented $7,000 per load as Innovative's own cost, and did not establish the pleaded redaction case because the unredacted invoice did not show a $145 per load charge. The alternative fraud grounds advanced in submissions were materially different from the articulated List Statement and could not be maintained.

Court Disposition

Plaintiff failed to establish that the Determination was obtained by fraud; Plaintiff's Summons dismissed and Plaintiff to pay the First Defendant's costs as agreed or assessed.

Orders

  • ["The Plaintiff's Summons should be dismissed." 'The Plaintiff should pay the costs of the First Defendant, as agreed or assessed.' 'The parties will be heard on the appropriate form of orders in relation to the funds in Court.']