Calsun v Lovton [2008] NSWDC 74

Reported Decision : 6 DCLR (NSW) 399

New South Wales District Court

CITATION: Calsun v Lovton [2008] NSWDC 74

HEARING DATE(S): 29 April 2008

JUDGMENT DATE: 16 May 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Judgment will be entered for Calsun in the sum of $93,896.21 together with interest to be calculated and agreed. DECISION: 2. The application filed on behalf of Lovton will be dismissed. 3. The proceedings are adjourned to a date to be fixed for the entry of judgment, argument in respect of costs of the applications and to deal with ongoing management of the remaining part of Calsun's claim.

CATCHWORDS: BUILDING & CONSTRUCTION - security of payment - payment claim for construction work - whether properly categorised as one for damages for breach of contract - claim for work undertaken during defects liability period - whether permitted by the contract

LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999

CASES CITED: Co-ordinated Construction Co Pty Limited v J M Hargreaves (NSW) Pty Limited (2005) 63 NSWLR 385

PARTIES: Calsun Materials Handling Pty Ltd ACN 080 575 926 (Plaintiff) Lovton Pty Limited as trustee for the Lovton Trust ACN 120 010 960 (Defendant)

FILE NUMBER(S): Newcastle 70/08

J J Woodward (Plaintiff) COUNSEL: D T Miller and J Chapman (Defendant)

Turnbull Hill Lawyers (Plaintiff) SOLICITORS: Whiteley, Ironside & Shillington (Defendant)

JUDGMENT

1 In May 2006 Calsun Materials Handling Pty Limited entered into a contract with Lovton Pty Limited for the construction by Calsun of a coal crushing plant at a coal mine at Boggabri for the sum of $5,129,820, excluding goods and services tax.