Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2024] NSWSC 1271

Supreme Court New South Wales

Medium Neutral Citation: Claire Rewais and Osama Rewais t/as McVitty Grove v BPB Earthmoving Pty Ltd [2024] NSWSC 1271 Hearing dates: 22 August 2024 Date of orders: 10 October 2024 Decision date: 10 October 2024 Jurisdiction: Equity - Technology and Construction List Before: McGrath J Decision: (1) The summons filed 15 July 2024 by the plaintiffs is dismissed. (2) The plaintiffs are to pay the defendant's costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION — adjudication — construction contract — payment claim by defendant — adjudication determination stipulating payment of adjudicated amount — application by plaintiffs seeking declaratory relief, order quashing determination or order restraining enforcement — where defendant failed to prove service of payment claim — where defendant filed adjudication application prematurely — adjudicator's findings as to timing of service and making of application — application of Brodyn v Davenport — HELD — determination not void merely by virtue of non-compliance with more detailed requirements of Building and Construction Industry Security of Payment Act 1999 (NSW) BUILDING AND CONSTRUCTION — adjudication — construction contract — application of Home Building Act 1989 (NSW) — contract for "residential building work" — whether ss 10 and/or 94 bar enforcement of right to progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — consideration of phrase "right of action" — right of action does not encompass statutory remedy to receive progress payments under Building and Construction Industry Security of Payment Act 1999 (NSW) — HELD — defendant entitled to enforce adjudication determination Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) ss 13, 14, 17, 22, 31, 32A Building and Construction Industry Security of Payment Act 2002 (Vic) Electronic Transactions Act 2000 (NSW) ss 5, 8, 13A Electronic Transactions Act 2000 (Vic) s 13A Home Building Act 1989 (NSW) sch 1, ss 4, 6, 7, 7AAA, 10, 12, 92, 94, 99 Home Building Regulation 2014 (NSW) rr 5, 12 Limitation Act 1969 (NSW) s 14 Magistrates Court Act 1921 (Qld) s 45 Cases Cited: All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289 BCFK Holdings Pty Ltd v Rork Projects Pty Ltd [2022] NSWSC 1706 BCS Infrastructure Support Pty Ltd v Jones Lang Lasalle (NSW) Pty Ltd [2020] VSC 739 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 Ketchell v Wynch [2002] 2 Qd R 560; [2001] QCA 391 Malek Fahd Islamic School Ltd v Minister for Education and Early Learning (2023) 111 NSWLR 585; [2023] NSWCA 143 Mohamed v Farah [2004] NSWSC 482 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 QC Communications NSW Pty Ltd v CivComm Pty Ltd [2016] NSWSC 1095 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Tagara Builders Pty Ltd v AP & L Services Pty Ltd (2015) SASR 29; [2015] SASC 30 Category: Principal judgment Parties: Claire Rewais & Osama Rewais t/as McVitty Grove (Plaintiffs) BPB Earthmoving Pty Ltd (First Defendant) Christopher Larcos (Second Defendant) Representation: Counsel: D Weinberger and D Emmerig (Plaintiffs) D Neggo (First Defendant) No appearance (Second Defendant)