BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238

Reported Decision : 67 NSWLR 9

New South Wales Court of Appeal

CITATION: BITANNIA PTY LTD & ANOR v PARKLINE CONSTRUCTIONS PTY LTD [2006] NSWCA 238

HEARING DATE(S): 13 and 14 July 2006

JUDGMENT DATE: 28 August 2006

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 17; Basten JA at 21

DECISION: (1) Appeal allowed; (2) Orders made by the District Court on 3 March 2006 in matter 1998 of 2005 be set aside; (3) In lieu thereof, grant leave to the Appellants in the proceedings in the District Court; (a) to file a defence formulated in accordance with the reasons of this Court within 14 days; and; (b) to reopen their case; (4) Remit the matter to the District Court for determination in accordance with the judgment of this Court; (5) The Respondent pay the Appellants' costs of the appeal; (6) The Intervenor is to bear its own costs; (7) The costs of the hearing to date in the District Court to be determined by the judge on remittal; (8) The Respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if not disqualified under s 6(7).

CATCHWORDS: BUILDING AND CONSTRUCTION – progress payments - Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 & 15 – whether bona fide belief in entitlements claimed required for valid payment claim - PRACTICE AND PROCEDURE – whether a breach of s 52 of Trade Practices Act 1974 (Cth) can be relied on as a defence – whether Building Payment Act s 15(4)(b)(ii) precluded such defence - CONSTITUTIONAL LAW – section 109 inconsistency – whether Building Payment Act s 15(4)(b) invalid to the extent that it prevents the raising of a cross claim in reliance on s 52 of the Trade Practices Act

Bills of Exchange Act 1909-1912 (Cth), s43 Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 15, 25, 32, 34 Constitution, ss 76(ii) and 77(iii), 109 Corporations Act 2001 (Cth), ss 5E-5G LEGISLATION CITED: District Court Act 1973 (NSW), s8 Judiciary Act 1903 (Cth), ss 39, 64, 79, 80 Jurisdiction of Courts (Miscellaneous Amendments) Act 1987 (Cth), s3 and Schedule Racial Discrimination Act 1975 (Cth), s6 Sex Discrimination Act 1984 (Cth), s10 Trade Practices Act 1974 (Cth), ss 4L, 44, 45D, 47, 52, 75, 80, 82, 86, 87