Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674

Supreme Court New South Wales

Medium Neutral Citation: Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674 Hearing dates: 13 December 2021; further written submissions 14 and 15 December 2021 Decision date: 17 December 2021 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Summons dismissed with costs Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of copy of adjudication application – where adjudication application provided electronically to adjudication authority and adjudicator – where hard copy of adjudication application and USB drive served on plaintiff respondent – where plaintiff respondent initially could not open file on USB drive to view video – where some minor differences between hard copy served on plaintiff respondent and electronic copy provided to adjudication authority and adjudicator – whether what was served was a copy of that provided to adjudication authority and adjudicator – whether substantial compliance with requirements of s 17(5) of the Building and Construction Industry Security of Payment Act sufficient – whether plaintiff respondent denied procedural fairness – whether adjudicator failed to perform his statutory function STATUTES – proper construction – whether s 17(5) of the Building and Construction Industry Security of Payment Act 1999 requires strict compliance – whether service of copy adjudication application in substantial compliance with s 17(5) effective Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Interpretation Act 1987 (NSW) Cases Cited: Accident Compensation Commission v Murphy [1988] VR 444 Australian Capital Television Pty Ltd v Minister for Transport & Communications (1989) 86 ALR 119; [1989] FCA 26 Bailey v Hinch [1989] VR 78 Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445 Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (2018) 98 NSWLR 712; [2018] NSWCA 276 In the matter of Prime City Investments Pty Ltd [2012] NSWSC 1287 Laing O'Rourke Australia Construction Pty Ltd v Monford Group Pty Ltd [2018] NSWSC 491 Pacific General Securities Ltd v Soliman & Sons Pty Ltd (2006) 196 FLR 388; [2006] NSWSC 13 Parkview Constructions Pty Ltd v Total Lifestyle Windows Pty Ltd [2017] NSWSC 194 Petch v Gurney (Inspector of Taxes) [1994] 3 All ER 731 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82; [2017] NSWCA 151 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409 Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v The Commonwealth (1975) 134 CLR 81; [1975] HCA 39 Category: Principal judgment Parties: Equa Building Services Pty Ltd (Plaintiff) KLG Trading Pty Ltd (First Defendant) Christopher Groves (Second Defendant) Adjudicate Today Pty Ltd (Third Defendant) Representation: Counsel: D J Byrne (Plaintiff) D S Weinberger (Defendants)