Kennedy Civil Contracting Pty Ltd (subject to Deed of Company Arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366

Supreme Court New South Wales

Medium Neutral Citation: Kennedy Civil Contracting Pty Ltd (subject to Deed of Company Arrangement) v Linx Constructions Pty Ltd [2024] NSWSC 366 Hearing dates: 19 March 2024 Date of orders: 11 April 2024 Decision date: 11 April 2024 Jurisdiction: Common Law Before: Wright J Decision: (1) The plaintiff's summons filed on 19 October 2023 is dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: APPEALS – appeal from the Local Court to the Supreme Court – appeal as of right "only on a question of law" – no leave to appeal on a question of mixed fact and law sought – whether question of law raised BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – payment claim – claimant's entitlement to recover "the unpaid portion of the claimed amount" – whether relying on payment made which reduced the unpaid portion amounted to "bringing a cross-claim" which was prohibited – whether a payment not made to the claimant which was found to reduce the unpaid portion was not to be taken into account in determining the unpaid portion Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 14(1) – (4), 15, 15(2)(a)(i), 15(4)(b)(i) Local Court Act 2007 (NSW), s 39 Uniform Civil Procedure Rules 2005 (NSW), rr 9.1(2) – (3), 9.10 Cases Cited: Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Category: Principal judgment Parties: Kennedy Civil Contracting Pty Ltd (Plaintiff) Linx Constructions Pty Ltd (Defendant) Representation: Counsel: AJ Greinke with PJ Hick (Plaintiff) F Corsaro SC (Defendant)