Sunshine East Pty Ltd v CBEM Holdings Pty Ltd [2023] NSWSC 744

Supreme Court New South Wales

Medium Neutral Citation: Sunshine East Pty Ltd v CBEM Holdings Pty Ltd [2023] NSWSC 744 Hearing dates: 16 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Common Law Before: Fagan J Decision: (1) Order 1 made on 1 May 2023 for stay of execution of judgment of the District Court given and entered in that court on 24 March 2023 is discharged. (2) The summons filed 20 April 2023 is dismissed. (3) The plaintiffs are to pay the defendant's costs of the proceedings. Catchwords: APPEALS – procedure – leave to appeal against summary judgment of District Court Registrar - plaintiff/judgment debtor ordered to pay unanswered progress claim for building works undertaken by defendant/judgment creditor pursuant to s 15 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – where summary judgment entered against plaintiff/judgment debtor due to absence of triable defence CONTRACTS – parties – agency – whether second plaintiff entered into contract with defendant for building works – where corporate agent empowered to enter into trade contracts on behalf of second plaintiff with prior approval – where no evidence that second plaintiff did not give prior approval in circumstances from which approval could be inferred – corporate agent acted with express actual authority to bind second plaintiff – no triable issue that second plaintiff was not a party to the contract BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – where defendant/judgment creditor was uninsured – statutory prevention to recover costs of work for failing to insure under s 94(1) not applicable to parts of the work that are not "residential building work" under the Act – where defendant/judgment creditor was unlicensed – where statutory consequences of being unlicensed do not include loss of entitlement to progress payments under s 15 of the Security of Payment Act – no triable issues arise due to the defendant/judgment creditor being uninsured or unlicensed Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) District Court Act 1973 (NSW) Home Building Act 1989 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Brodyn Pty Ltd v. Davenport [2004] NSWCA 394 Category: Principal judgment Parties: Sunshine East Pty Ltd (plaintiff) CBEM Holdings Pty Ltd (defendant) Representation: Counsel: G Campbell (plaintiff) M Sheldon (defendant)