In-Line Building and Construction Management Services Pty Ltd v Bluecarp Pty Ltd [2020] NSWSC 606

Supreme Court New South Wales

Medium Neutral Citation: In-Line Building and Construction Management Services Pty Ltd v Bluecarp Pty Ltd [2020] NSWSC 606 Hearing dates: 21 May 2020 Date of orders: 21 May 2020 Decision date: 21 May 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Defendant restrained from enforcing adjudication determination pending final determination of the proceedings Catchwords: BUILDING AND CONSTRUCTION – whether serious question to be tried that an adjudication determination made under the Building and Construction Industry Security of Payment Act void – whether balance of convenience favours restraining defendant from enforcing the determination pending the hearing of the proceedings Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Laing O'Rourke Australia Construction Pty Ltd v H&M Engineering & Construction Pty Ltd [2010] NSWSC 818 TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72 Category: Procedural and other rulings Parties: In-Line Building and Construction Management Services Pty Ltd (Plaintiff) Bluecarp Pty Ltd (First Defendant) Peter Sarlos (Second Defendant) Representation: Counsel: Mr D Weinberger (Plaintiff)

Solicitors: Bradbury Legal (Plaintiff) File Number(s): 2020/149186

Judgment 1. On 19 May 2020, as Technology and Construction List duty judge, I granted the plaintiff, In-Line Building and Construction Management Services Pty Ltd, leave to serve the Summons and supporting affidavit in these proceedings on the defendant, Bluecarp Pty Ltd, with short notice. 2. Service was effected in accordance with my order. 3. Bluecarp appeared today, by telephone, by its director Mr Kevin Trasler. 4. I ordered, pending final determination of these proceedings, that: 1. Bluecarp be restrained from registering any Adjudication Certificate issued pursuant to s 24 of the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act") in respect of an Adjudication Determination dated 7 May 2020 made pursuant to s 22 of the Act, to which I refer further below, as a judgment in the Local Court of New South Wales or any other Court of competent jurisdiction; and 2. execution of any judgment that has been entered in respect of that Adjudication Determination be stayed. 1. In accordance with the Court's usual practice, those orders are subject to In-Line paying into Court the amount of the Adjudication Determination. 2. I informed Mr Trasler that I would publish reasons for my decision. These are those reasons. 3. In-Line and Bluecarp entered a contract for the provision by Bluecarp of carpentry services at premises in Bondi. 4. On 4 March 2020 Bluecarp served on In-Line a Payment Claim pursuant to s 13 of the Act claiming $35,895.50. 5. On 18 March 2020 In-Line served a Payment Schedule pursuant to s 14 of the Act specifying that the amount payable by it to Bluecarp was nil. 6. On 1 April 2020 Bluecarp made an Adjudication Application pursuant to s 17 of the Act, to which In-Line responded with an Adjudication Response pursuant to s 20 of the Act served on 9 April 2020. 7. In its Adjudication Response, In-Line contended that four amounts relating to allegedly defective work and totalling $74,000 should be set-off against the amount claimed by Bluecarp. 8. In its Adjudication Response, In-Line also contended that it had paid $18,656 on account of the work the subject of the Payment Claim. 9. Thus it stated: "Conclusion including reconciliation noting the contents of the payment schedule as to offsets and failure to account for money already paid. In the payment schedule (attached as #8) the offsets which are allowed to be deducted from the value of the work claimed are set out in several different ways so that the impact of what was not done by Bluecarp and or what was not done properly by Bluecarp was clear. That reconciliation also made it clear that In-Line had paid a sum of $18,656. Despite the contents of the adjudication claim there is no clear let alone specific rebuttal of this position. The one page invoice on which there are written notes which may or may not be a reconciliation by Bluecarp does not recognise that the agreement made as a result of the 14 May work to complete Boonara document and subsequent but contemporaneous discussions saw invoice 297 absorbed into the $30,000 fee and noting as mentioned in the payment schedule and as I recall it the Bluecarp submissions the invoices sent were made and first sent in February 2020 in an effort to conclude this matter. Payments made after the agreement was made are as follows: 19/07/2019 $ 6,205 09/08/2019 $ 9,198 18/08/2019 $ 3,253 Total $18,656