De Martin and Gasparini v Ex Parte - Energy Australia & Anor [2002] NSWSC 55

New South Wales Supreme Court

CITATION : De Martin and Gasparini v Ex Parte - Energy Australia & Anor [2002] NSWSC 55 revised - 21/02/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 55053/01 HEARING DATE(S) : 9 January 2002 13 February 2002 JUDGMENT DATE : 15 February 2002

De Martin and Gasparini Pty Ltd PARTIES : Ex Parte - Energy Australia Pty Ltd (1st Defendant) Austin Australia Pty Ltd (2nd Defendant) JUDGMENT OF : Simpson J

COUNSEL : RC McDougall QC (Plaintiff) MG Rudge SC (2nd Defendant) SOLICITORS : Minter Ellison (Plaintiff) Colin Biggers and Paisley (2nd Defendant) CATCHWORDS : Contractors Debts Act 1997 s 14(1) - attachment order - whether proceedings have been commenced - whether money claimed for work carried out and materials supplied - whether evidence establises that money is owing - discretion LEGISLATION CITED : Contractors Debts Act 1997 CASES CITED : Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd (unreported, 10 February 1999, WASC, per Master Sanderson) DECISION : Attachment order discharged

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION construction LIST

SIMPSON J

15 February 2002

55053/01 De Martin and Gasparini Pty Ltd v Ex Parte – Energy Australia Pty Ltd (1st Defendant) and Austin Australia Pty Ltd (2nd Defendant) JUDGMENT 1 Her Honour: These proceedings require consideration (apparently for the first time) of the reach and application of s 14(1) of the Contractors Debts Act 1997 ("the Act"). That subsection is in the following terms: "If proceedings are commenced by an unpaid person against a person (the defendant ) for recovery of a money owed to the unpaid person by the defendant for work carried out or materials supplied by the person, the court may, on the application of the unpaid person, make an order under this section (an attachment order ) against any other person from whom the unpaid person may be able to recover the debt under this Act." 2 On 30 November 2001, pursuant to the subsection and on the application of the present plaintiff (De Martin and Gasparini Pty Ltd, to whom I shall refer as "DMG"), and with the consent of the first defendant (Energy Australia Pty Ltd ("Energy Australia")) but in the absence, and without the knowledge, of the second defendant (to whom I shall refer as "Austin") Bergin J made an order in the following terms: " By consent ATTACHMENT ORDER – s14 CONTRACTORS DEBTS ACT 1997 1. The defendant [Energy Australia], on service of this order, will retain and hold in its hands the amounts set out in the Attachment 'A' to this order, until Judgment or such earlier order of the court. 2. Costs reserved. 3. Liberty to apply on seven (7) days notice." Her Honour also ordered that Austin be immediately notified of the order. 3 Attachment A was identified as a "Schedule of money owed by Austin Australia Pty Ltd to De Martin and Gasparini Pty Ltd" and gave a total figure of $960,009.04. (The calculations by which this figure was arrived at were later agreed to have been erroneous in some respects, but this is immaterial to the present determination.) 4 The amount stated represented certain money that, in the absence of the attachment order, would have been paid by Energy Australia to Austin. Accordingly, Austin until that date having had no opportunity to be heard in respect of the application, on 7 December 2001 Bergin J ordered DMG to join Austin as a party to the proceedings, and otherwise continued the attachment order to 5.00 p.m. on 14 December 2001, on which day her Honour again (this time with the consent of both Energy Australia and Austin) continued the order, this time until further order of the court. In large part Austin consented to this order, and it was made, by reason of the exigencies of court lists at the time, and the unlikelihood that any time for a substantial hearing would become available. Austin's consent does not reflect upon the merits, perceived or otherwise, of DMG's application. 5 By Notice of Motion filed on 20 December 2001 Austin seeks the discharge of the attachment order. It is this application that is the subject of the present judgment. Energy Australia has played no part in the proceedings, having submitted to the order of the court. The issues in dispute are solely between DMG and Austin.