Digital City v QX Australia [2004] NSWSC 933

New South Wales Supreme Court

CITATION : Digital City v QX Australia [2004] NSWSC 933 HEARING DATE(S) : 7 October 2004 JUDGMENT DATE : 7 October 2004

JURISDICTION: Equity Technology & Construction List JUDGMENT OF : Campbell J DECISION : Injunction granted without term for payment in

CATCHWORDS : CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - remuneration - Building and Construction Industry Security of Payment Act 1999 - whether interlocutory injunction against advancing of adjudication process, pending determination of whether adjudicator has jurisdiction, should be on terms of requiring payment into Court of amount claimed LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 CASES CITED : Abacus Funds Management Ltd v Davenport [2003] NSWSC 935 Amflo Constructions Pty Limited v Anthony Jefferies [2003] NSWSC 856 Digital City Pty Ltd - Plaintiff PARTIES : QX Australia Pty Limited - First Defendant Peter Finnane - Second Defendant LEADR - Third Defendant FILE NUMBER(S) : SC 55071/04 COUNSEL : S Kerr - Plaintiff G Curtin - First Defendant W G McNally & Co - Plaintiff SOLICITORS : No appearance - First Defendant Submitting appearance - Second Defendant Submitting appearance - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

CAMPBELL J

THURSDAY 7 OCTOBER 2004

55071/04 DIGITAL CITY PTY LTD v QX AUSTRALIA PTY LIMITED & ORS JUDGMENT – Ex Tempore 1 HIS HONOUR: This is an application to extend an ex parte injunction which Palmer J granted yesterday, and which expires later today. The litigation arises under the Building and Construction Industry Security of Payment Act 1999. The plaintiff is the proprietor under a building contract, for whom the first defendant carried out some building work. The first defendant has made an adjudication application, relating to what it says is a payment claim made in accordance with the Act. The third defendant is the nominating authority to whom that application was made. The third defendant has nominated the second defendant as the adjudicator, and the second defendant has accepted that nomination. 2 The basis upon which the plaintiff challenges the jurisdiction of the adjudicator is that it asserts that there never was a payment claim within the meaning of section 13 of the Act served upon it. Palmer J's orders prevented steps being taken to advance the adjudication process. 3 There is affidavit evidence, which was before Palmer J yesterday, where the solicitor for the plaintiff says, on information and belief, two separate things: