In the matter of Nicolas Criniti Pty Ltd (in Liquidation) [2022] NSWSC 1149

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Nicolas Criniti Pty Ltd (in Liquidation) [2022] NSWSC 1149 Hearing dates: 18 August 2022 Decision date: 29 August 2022 Jurisdiction: Equity - Corporations List Before: Hammerschlag CJ in Eq Decision: Appeal from liquidator's rejection of proof of debt dismissed Catchwords: CORPORATIONS ACT – Corporations Act 2001 (Cth) s 553(1) – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) ss 3, 8, 19, 20 and 23 – where plaintiff lodges proof of debt based on its alleged statutory entitlement under the SOP Act and at the relevant date does not yet have an adjudication determination – where liquidator rejects the proof of debt and the plaintiff appeals – HELD – circumstances giving rise to the debt relied upon have not arisen – appeal dismissed Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Corporations Regulations 2001 (Cth) Cases Cited: Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCAFC 126 Falgat Constructions v Equity Australia Corporation [2006] NSWCA 259 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 1567 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 Sons of Gwalia v Margaretic (2007) 231 CLR 160 Category: Principal judgment Parties: Zadro Constructions Pty Ltd trading as Zadro Constructions Pty Ltd - Plaintiff Nicolas Criniti Pty Ltd (in Liquidation) - First Defendant Schon Gregory Condon - Second Defendant Representation: Counsel: M Sheldon - Plaintiff S J Philips - Defendants