De Martin & Gasparini Pty Ltd v Energy Australia Pty Ltd & Anor [2004] NSWSC 336

New South Wales Supreme Court

CITATION : De Martin & Gasparini Pty Ltd v Energy Australia Pty Ltd & Anor [2004] NSWSC 336 HEARING DATE(S) : 21 April 2004 JUDGMENT DATE : 21 April 2004

JURISDICTION: Equity Division Technology & Construction List JUDGMENT OF : Bergin J DECISION : Motion dismissed.

CATCHWORDS : [INJUNCTIONS] - Application to discharge injunction - changed circumstances alleged - Service of final certificate under construction contract - Whether serious issue to be tried in relation to validity of final certificate - Balance of convenience - Applicant placed into liquidation after injunction granted. LEGISLATION CITED : Building & Construction Industry Security of Payment Act 1999 Corporations Act 2001 PARTIES : De Martin & Gasparini Pty Ltd (Respondent/Plaintiff) Austin Australia Pty Ltd (Applicant/Second Defendant) FILE NUMBER(S) : SC 55053/01 COUNSEL : F Corsaro SC (Respondent/Second Defendant) S Kerr, N Bilinsky (Applicant/Plaintiff) SOLICITORS : Crisp Solicitors (Applicant/Plaintiff) Gadens Solicitors (Respondent/Second Defendant)

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

BERGIN J

21 APRIL 2004

55053/01 - DE MARTIN & GASPARINI PTY LTD v ENERGY AUSTRALIA PTY LTD & Anor

1 This is an application made by way of motion filed on 31 March 2004 by Austin Australia Pty Ltd, in liquidation (Austin), the second defendant in these proceedings seeking the setting aside of orders made by Windeyer J on 23 December 2003. On that occasion Windeyer J, upon the plaintiff by its counsel giving the usual undertaking as to damages, ordered that Austin be restrained from presenting for payment or demanding payment of a sum of $183,000, or any part of it, from Westpac Banking Corporation pursuant to guarantees issued by that bank to Austin for the purposes of providing security in accordance with a subcontract between the parties dated 24 May 2000 (the contract). 2 The main proceedings were commenced in 2001. The plaintiff, De Martin & Gasparini Pty Ltd, sued Energy Australia and Austin in relation to a dispute arising out of the construction of the city central zone substation in Black Wattle Place, Darling Harbour. Austin was the main contractor engaged by Energy Australia and had the right to engage subcontractors and did so, engaging the plaintiff. The plaintiff carried out the subcontract works and there is no issue between the parties that the subcontract work was completed some time in 2001.