Duzenli Developments Pty Ltd ACN 623 852 031 trading as Zen Group Constructions v Benuga Pty Ltd ACN 001 131 997 [2020] NSWSC 1667

Supreme Court New South Wales

Medium Neutral Citation: Duzenli Developments Pty Ltd ACN 623 852 031 trading as Zen Group Constructions v Benuga Pty Ltd ACN 001 131 997 [2020] NSWSC 1667 Hearing dates: 19 November 2020 Date of orders: 23 November 2020 Decision date: 23 November 2020 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Interlocutory injunction granted restraining the defendant from entering the site until resolution of the proceedings before NCAT. Costs of the interlocutory contest shall be each party's cost in the proceedings. Liberty to apply to the duty judge granted. Catchwords: EQUITY – Equitable remedies – Injunctions – serious question to be tried – balance of convenience – plaintiff builder executes building work under a building contract with the defendant upon land owned by the defendant – plaintiff's building work does not reach practical completion – disputes break out about allegedly defective work and the rate of completion of the work – defendant purports to terminate the contract and to exclude the builder from the site – the plaintiff commences proceedings in the NSW Civil and Administrative Tribunal (NCAT) seeking remedies under the Home Building Act 1989 – NCAT gives directions, allowing both parties access to the site with their experts to prepare for a hearing before NCAT – the defendant seeks possession of the site on the basis that the plaintiff's license to be on the site has been terminated – whether the defendant should be let into possession – whether the parties should both be excluded from the site pending resolution of the NCAT proceedings. Legislation Cited: Civil and Administrative Tribunal Act 2013, Schedule 4, s 5(3) Home Building Act 1989, ss 18BA, 48MA, 48O(1)(c) Supreme Court Act 1970, s 66(4) Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Chermar Productions Pty v Prestest Pty Ltd (Supreme Court of Victoria (VIC), 5 May 1989, unrep) Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 Doherty v Allman & Dowden (1878) 3 App Cas 709 Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408 Graham H. Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93 Linga v C & N Constructions Pty Ltd [2012] NTSC 8 Sigma Constructions (VIC) Pty Ltd v Maryvell Investments Pty Ltd [2004] VSCA 242 Texts Cited: RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Consequential orders Parties: Plaintiff: Duzenli Developments Pty Ltd ACN 623 852 031 trading as Zen Group Constructions Defendant: Benuga Pty Ltd ACN 001 131 997 Representation: Counsel: Plaintiff: J. Mack Defendant: T. Davie