MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514

Supreme Court New South Wales

Medium Neutral Citation: MGW Engineering Pty Ltd t/a Forefront Services v CMOC Mining Pty Ltd [2021] NSWSC 514 Hearing dates: 28 April 2021 Decision date: 11 May 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Summons to be dismissed; declarations and orders to be made in accordance with Cross Summons Catchwords: BUILDING AND CONSTRUCTION – whether payment claims under Building and Construction Industry Security of Payment Act 1999 served on 3 or 4 February 2021 – whether service was effected on 3 February by delivering personally or by lodging during normal office hours or in accordance with construction contract – meaning of delivering personally – meaning of lodging at ordinary place of business – whether service effected in the manner provided under the construction contract – whether provision in construction contract that delivery after 4pm taken to be effected the following day void by reason of s 34 of the Act – whether principal entitled to specific performance of obligation to produce steel and shop drawings Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cwth) Cases Cited: Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53 Howship Holdings Pty Limited v Leslie (1996) 41 NSWLR 542; [1996] NSWSC 314 Jamac Construction Group Pty Ltd v De Mol Investments Pty Ltd [2014] WASC 273 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427 Sand Excavation Pty Ltd v Nahas Constructions Pty Ltd [2011] NSWSC 184 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 South Western Sydney Local Health District v Gould [2018] 97 NSWLR 513; [2018] NSWCA 69 SMA Solar Technology AG v Beyond Building Systems Pty Ltd (No 5) [2012] FCA 1483 Tal Life Limited v Shuetrim; Metlife Insurance Limited v Shuetrim (2016) 91 NSWLR 439; (2016) NSWCA 68 Viljoen v Hayes [2017] NSWSC 801 Woodgate v Garard Pty Ltd [2010] NSWSC 508 Texts Cited: Oxford English Dictionary, online ed (2011) P Herzfeld and T Prince, Interpretation, (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: MGW Engineering Pty Ltd trading as Forefront Services (Plaintiff/Cross-Defendant) CMOC Mining Pty Limited (First Defendant/Second Cross-Claimant) Sumitomo Metal Mining Oceania Pty Ltd (Second Defendant/Third Cross-Claimant) SC Mineral Resources Pty Ltd (Third Defendant/Fourth Cross-Claimant) CMOC Mining Services Pty Ltd (First Cross-Claimant) Representation: Counsel: D S Weinberger (Plaintiff/Cross-Defendant) M Ashhurst SC with N Simpson (Defendants/Cross-Claimants)