Timwin Construction v Facade Innovations [2005] NSWSC 548

New South Wales Supreme Court

CITATION : Timwin Construction v Facade Innovations [2005] NSWSC 548

HEARING DATE(S) : 1 June 2005

JUDGMENT DATE : 1 June 2005

JURISDICTION : Technology & Construction List

JUDGMENT OF : McDougall J at 1

DECISION : See para [52] of judgment

CATCHWORDS : BUILDING AND CONSTRUCTION - good faith - meaning of good faith - whether attempt made in good faith by adjudicator to exercise powers under the Act

Brodyn v Davenport and Anor [2004] NSWCA 394 Minister for Commerce v Contrax Plumbing [2005] NSWSC 142 Multiplex Constructions Proprietary Limited v Luikens [2003] NSWSC 1140 LEGISLATION CITED : Roberts v Hopwood [1925] AC 578 The Queen v Hunt; ex parte Sean Investments Proprietary Limited (1979) 180 CLR 322 Zhang v Canterbury City Council (2001) 51 NSWLR 589

CASES CITED : Building and Construction Industry Security of Payment Act 1999

Timwin Construction Pty Ltd (Plaintiff) Facade Innovations Pty Ltd (First Defendant) PARTIES : Mediate Today Pty Limited t/as Adjudicate Today (Second Defendant) Philip Davenport (Third Defendant)

FILE NUMBER(S) : SC 55035/05

Ms V Culkoff (Plaintiff) COUNSEL : Mr J P Doyle, Solicitor (Defendants)

David Campbell-Williams (Plaintiff) SOLICITORS : Doyles Construction Lawyers (Defendants)

LOWER COURT JURISDICTION :

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

McDOUGALL J

1 June 2005 Ex tempore (Revised 6 June 2005)

55035/05 TIMWIN CONSTRUCTION PTY LIMITED v FAÇADE INNOVATIONS PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: In Brodyn v Davenport and Anor [2004] NSWCA 394, the Court of Appeal (Hodgson JA, with whom Mason P and Giles JA agreed) held that a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 (the Act) could be set aside and relief granted by way of deprivation and injunction in the following circumstances: