Lifese Pty Limited v Adelaide Brighton Cement Limited [2008] NSWDC 38

Reported Decision : 6 DCLR (NSW) 333

New South Wales District Court

CITATION: Lifese Pty Limited v Adelaide Brighton Cement Limited [2008] NSWDC 38

HEARING DATE(S): 1 February 2008

JUDGMENT DATE: 13 February 2008

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: Dismiss application

CATCHWORDS: Contracts - Building Contract - Builder's claim for unpaid money - Effect of subsequent adjudication

LEGISLATION CITED: Building and Construction Industry Security Payment Act 1999 Civil Procedure Act 2005

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, 129 CASES CITED: Heath v Goodwin (1987) 8 NSWLR 478, 482 John Holland Pty Ltd v Roads and Traffic Authority of NSW (2006) 66 NSWLR 624; affirmed on appeal [2007] NSWCA 140

PARTIES: Lifese Pty Limited (Plaintiff) Adelaide Brighton Cement Limited (Defendant)

FILE NUMBER(S): 501 of 2007

COUNSEL: Mr N.A. Nicholls (Plaintiff) Mr M. Christie (Defendant)

SOLICITORS: Mills Oakley (Plaintiff) Johnson Winter & Slattery Lawyers (Defendant)

JUDGMENT

1 HIS HONOUR: On 8 April 2005, the parties entered into a contract for various works at the Hartley Quarry. Lifese Pty Limited ("Lifese") commenced these proceedings against Adelaide Brighton Cement Ltd ("ABC") to have judgment entered for the sum of $500 699.99. It alleges that the sum is due and owing under the Building and Construction Industry Security Payment Act 1999 ('Building and Construction Act"), ss 14(4) and 15 (2), because ABC failed to serve any payment schedule in response to a claim served by Lifese on 5 December 2006.

2 This application is for leave by ABC to further amend its defence to include a defence said to be "an answer to the whole of the plaintiff's claim".