Ontrac v BHCF [2008] NSWDC 76

New South Wales District Court

CITATION: Ontrac v BHCF [2008] NSWDC 76

HEARING DATE(S): 24 April 2008

JUDGMENT DATE: 16 May 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Judgment will be set aside to the extent of $103,653 and interest. 2. The proceedings are to be listed for directions on a date to be fixed to deal with costs, and other issues as set out in the judgment.

CATCHWORDS: BUILDING & CONSTRUCTION - security of payment - content of valid payment claim - service of payment claim

Building & Construction Industry Security of Payment Act 1999 LEGISLATION CITED: Corporations Act 2001 (Cth) Evidence Act 1995

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2007) 23 BCL 292 CASES CITED: Firedam Civil Engineering Pty Ltd v KJP Constructions Pty Ltd [2007] NSWSC 1162 Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd (2004) 20 BCL 276

PARTIES: Ontrac Constructions Pty Limited ACN 099 667 802 (Plaintiff) BHCF Pty Limited ACN 094 606 630 (Defendant)

FILE NUMBER(S): Newcastle 3/08

P R Cummings (Plaintiff) COUNSEL: J J Priestley (Defendant)

Gillis Delaney Lawyers (Plaintiff) SOLICITORS: Mulcahy Lawyers (Defendant)

JUDGMENT

1 The defendant, BHCF Pty Limited, seeks orders setting aside the judgment entered against it on 15 February 2008 in the sum of $121,204.99 and the repayment of that sum by the plaintiff, Ontrac Constructions Pty Limited.

2 Judgment was entered on a claim brought by Ontrac in a statement of claim issued on 11 January 2008. It claimed that moneys were due to it pursuant to: 1. A contract for the construction on behalf of BHCF of a swimming pool and associated works at 951 Broken Head Road, Broken Head. 2. A contract for the construction of a storeroom at the same premises.