NSW Caselaw
District Court New South Wales
Medium Neutral Citation: Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6 Hearing dates: 3 February 2022 Date of orders: 8 February 2022 Decision date: 08 February 2022 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 42 – 43 Catchwords: BUILDING AND CONSTRUCTION - two disputed payment claims issued - no payment schedules served within time - whether disputed payment claims claimed work under two or more construction contracts - whether, by reason of not serving payment schedules, respondent is prevented from asserting invalidity in payment claims PRACTICE AND PROCEDURE - application for summary judgment - proceeding featured mixed claims of debt sourced under Security of Payment legislation, and alternative claims for breach of contract and a quantum meruit - respondent asserts work defective and involved delay - respondent pleads set-off (in statute and in equity) in answer to all claims and cross-claims for unliquidated damages - whether arguable equitable set off may arise against debt claim sourced in statute Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13, 14, 15 Civil Procedure Act 2005 (NSW) s 21 Uniform Civil Procedure Rules 2002 (NSW) r 13.1 Cases Cited: Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QSC 39 Concut Pty Ltd v Worrell (2000) 176 ALR 693 HP Mercantile Pty Ltd v Dierickx (2013) 306 ALR 53; [2013] NSWCA 479 Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (2016) 260 CLR 340 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534 Category: Procedural rulings Parties: Cosmo Cranes & Rigging Pty Ltd (plaintiff/cross-defendant) EQ Constructions Pty Ltd (defendant/cross-claimant) Representation: Counsel: Mr M Langenheim for the plaintiff/cross-defendant Mr D Hume for the defendant/cross-claimant
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