Plus 55 Village Management P/L v Parisi Homes P/L [2005] NSWSC 559

New South Wales Supreme Court

CITATION : Plus 55 Village Management P/L v Parisi Homes P/L [2005] NSWSC 559

HEARING DATE(S) : 03/06/05

JUDGMENT DATE : 3 June 2005

JUDGMENT OF : White J

DECISION : 1. Order that the statutory demand be set aside; 2. order the defendant pay the plaintiff's costs of the proceedings; and 3. exhibits may be returned after twenty-eight days.

CATCHWORDS : BUILDING AND CONSTRUCTION - Application under s 459G of Corporations Act to set aside a statutory demand - Oral agreement for building of aged-care hostel - Adjudication in favour of the defendant filed as a District Court judgment - Consumer Claims Tribunal declined to hear application due to lack of jurisdiction - Dispute as to basis for payment - Dispute as to whether work is a "dwelling" under Home Building Regulations - Home Building Act ss 10, 91(1)(a), 92, 94 - Building and Construction Industry Security of Payment Act ss 32(2), (3) - Corporations Act s 459G, s 459H(1)(b) - Held that there is a genuine dispute about whether the plaintiff is liable for the amount adjudicated - Statutory demand set aside.

Corporations Act 2001 (Cth) Building Construction Industry Security of Payment Act 1999 LEGISLATION CITED : Home Building Act 1989 Home Building Regulations (1997)

Max Cooper & Sons (Builders) Pty Ltd v M & E Booth Pty Ltd (2003) NSWSC 929 Demir Pty Limited v Graf Plumbing Pty Limited (2004) NSWSC 553 CASES CITED : Greenaways Australia Pty Ltd v CBC Management Pty Ltd (2004) NSWSC 1186 Aldoga Aluminium Pty Ltd v De Silva Starr Pty Ltd (2005) NSWSC 284 Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785, 12 ACLC 669