Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716

New South Wales Supreme Court

CITATION : Barclay Mowlem Construction v Tesrol Walsh Bay [2004] NSWSC 716 revised - 10/12/2004 HEARING DATE(S) : 30 July 2004 JUDGMENT DATE : 13 August 2004 JURISDICTION: Equity JUDGMENT OF : McDougall J DECISION : See paras [26] and [27] of judgment

CATCHWORDS : BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - where plaintiff moves for summary judgment - whether defendant has arguable defence to preclude plaintiff from obtaining summary judgment - where document alleged to be payment schedule did not indicate the payment defendant intended to make - whether defendant provided payment schedule for purposes of s 14 - requirements of payment schedules - whether question to be determined on final hearing and not by way of summary judgment - estoppel by representation - where alleged representation that parties take no further step in response to claim until negotiations take place - whether defendant relied upon representation to its detriment by taking no further steps under Act in respect of payment claim - whether estoppel defence prohibited by s 34 - whether question to be resolved on application for summary judgment LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW) Trades Practices Act 1974 CASES CITED : Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 PARTIES : Barclay Mowlem Construction Ltd (Plaintiff) Tesrol Walsh Bay Pty Ltd (Defendant) FILE NUMBER(S) : SC 55043/04 COUNSEL : M Rudge SC / D Sibtain (Plaintiff) G Inatey SC / D Miller (Defendant) SOLICITORS : Corrs Chambers Westgarth (Plaintiff) Malcolm Johns & Company (Defendant)