Corbett Court v Quasar [2004] NSWSC 1174

New South Wales Supreme Court

CITATION : Corbett Court v Quasar [2004] NSWSC 1174 revised - 14/12/2004 HEARING DATE(S) : 25, 26 November 2004 (for orders) JUDGMENT DATE : 25 November 2004

JUDGMENT OF : McDougall J at 1 DECISION : See paras [22] to [25] of judgment

CATCHWORDS : BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 - S 7(2)(a) - whether tripartite deed a loan agreement within s 7(2)(a)(i) of Act - no question of principle LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 CASES CITED : Brodyn Pty Ltd v Davenport [2004] NSWCA 394 TransGrid v Siemens [2004] NSWCA 395 Corbett Court Pty Limited (Plaintiff) PARTIES : Quasar Constructions (Defendant 1) Robert Sundercombe (Defendant 2) Australian Solutions Centre (Defendant 3) FILE NUMBER(S) : SC 55077/04 COUNSEL : S A Kerr (Plaintiff) M G Rudge SC/A Kostopoulos (Defendant 1) SOLICITORS : Caldwell Martin Cox (Plaintiff) Wright Stell (Defendant 1)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

25 November 2004 Ex tempore (Revised 30 November 2004)

55077/04 CORBETT COURT PTY LIMITED v QUASAR CONSTRUCTIONS & ORS

JUDGMENT

1 HIS HONOUR: The question for decision in these proceedings is whether the Building and Construction Industry Security of Payment Act 1999 ("the Act") applies to a construction contract made on 1 October 2003 between the plaintiff ("Corbett Court") as owner and the first defendant ("Quasar") as contractor ("the contractor"). The parties accepted that the contract is a construction contract as that expression is defined in s 4 of the Act. But Corbett Court says that the contract forms part of a loan agreement under which National Australia Bank Limited ("the bank"), a "recognised financial institution", undertook to lend money. The agreement that Corbett Court identifies as the loan contract is that comprised in a "tripartite deed" made on 1 October 2003 between Quasar, Corbett Court and the bank ("the deed"). The issues 2 As the proceedings were argued, there were two issues for decision: