Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49

Reported Decision : 62 NSWLR 385

New South Wales Court of Appeal

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 March 2005

JUDGMENT DATE: 3 March 2005

JUDGMENT OF: Handley JA at 1; Santow JA at 33; Pearlman AJA at 34

DECISION: 1. Leave to appeal granted subject to the notice of appeal being filed within 14 days if not already filed.; 2. Appeal allowed.; 3. The injunction granted by Naughton DCJ on 26 November 2004 is dissolved.; 4. The notice of motion of 12 November 2004 is dismissed with costs.; 5. The opponent is to pay the claimant's costs of the proceedings in this Court and is to have a certificate under the Suitors' Fund if qualified.

CATCHWORDS: BUILDING AND ENGINEERING CONTRACTS - effect of statutory remedies under Building and Construction Industry Security of Payment Act 1999 - BUILDING AND CONSTRUCTION INDUSTRY - Statutory remedies of builder - whether concurrent pursuit of statutory and common law remedies permissible - INJUNCTIONS - anti-suit - whether concurrent pursuit of statutory and common law remedies permissible under statute - whether vexatious or oppressive - D

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

CASES CITED: Toubia v Schwenke (2002) 54 NSWLR 46

Falgat Constructions Pty Ltd (Claimant) PARTIES: Equity Australia Corporation Pty Ltd (Opponent)

FILE NUMBER(S): CA 41052/04

J J Graves SC/F Clark (Claimant) COUNSEL: G Sirtes (Opponent)

Julie A Orsini (Claimant) SOLICITORS: Stephen Wawn & Associates (Opponent)