J Hutchinson Pty Limited v Auslat Properties Pty Limited [2006] NSWDC 126

Reported Decision : 3 DCLR (NSW) 315

New South Wales District Court

CITATION: J Hutchinson Pty Limited v Auslat Properties Pty Limited [2006] NSWDC 126

HEARING DATE(S): 1 June 2006

JUDGMENT DATE: 20 December 2006

EX TEMPORE JUDGMENT DATE : 06/01/2006

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Summary judment for the plaintiff for $77,842.21 plus interest under s 100 of the Civil Procedure Act 2005; Defendant to pay the plaintiff's costs of the motion, including any reserved costs, as agreed or assessed on the ordinary basis

CATCHWORDS: Building and Construction - No payment schedule served - Whether payment schedule sufficient and valid - Whether the building works were sufficiently identified

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

CASES CITED: Brookhollow Pty Limited v R & R Consultants Pty Limited [2006] NSWSC 1 Nepean Engineering Pty Limited v Total Process Service Pty Limited (in liquidation) [2005] NSWCA 409

PARTIES: J Huthchinson Pty Limited (Plaintiff) Auslat Properties Pty Limited (Defendant)

FILE NUMBER(S): 871/06

COUNSEL: Mr I Roberts (Plaintiff) Ms F Clarke (Defendant)

SOLICITORS: Dibbs Abbott Stillman (Plaintiff) Davis Legal (Defendant)

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JUDGMENT HIS HONOUR: 1) The plaintiff moves on a notice of motion filed 3 March 2006, seeking summary judgment in accordance with s 15(4) of the Building and Construction Industries Security of Payment Act 1999 (New South Wales).

(2) The plaintiff relies on a letter dated 28 November 2005 as evidence of the payment claim (annexure D to the affidavit of Gregory Quinn sworn 28 April 2006).