JBK Engineering Pty Limited v Brick & Block Company Pty Limited; JBK Design & Construction Pty Limited v Brick & Block Company Pty Limited [2007] NSWSC 163

New South Wales Supreme Court

CITATION : JBK Engineering Pty Limited v Brick & Block Company Pty Limited; JBK Design & Construction Pty Limited v Brick & Block Company Pty Limited [2007] NSWSC 163

HEARING DATE(S) : 01/03/07 JURISDICTION : Equity Division Technology and Construction List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 1 March 2007

DECISION : Application dismissed

CATCHWORDS : Application to refuse leave to re-open interlocutory order

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

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 CASES CITED : Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 DA Christie v Baker [1996] 2 VR 582 Nominal Defendant v Manning (2000) 50 NSWLR 139

JBK Engineering Pty Limited (Plaintiff) PARTIES : JBK Design & Construction (Plaintiff) Brick & Block Company Pty Limited (Defendant)

FILE NUMBER(S) : SC 55041/06; 55042/06

COUNSEL : Mr J Hyde (Plaintiffs) Mr M Christie (Defendant)

SOLICITORS : Doyles Construction Lawyers (Plaintiffs) Corrs Chambers Westgarth (Defendant)

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

Einstein J

Thursday 1 March 2007 ex tempore Revised 2 March 2007

55041/06 JBK ENGINEERING PTY LIMITED v BRICK & BLOCK COMPANY PTY LIMITED

55042/06 JBK DESIGN & CONSTRUCTION PTY LIMITED v BRICK & BLOCK COMPANY PTY LIMITED

JUDGMENT

The History of the Proceedings 1 The broad history of the three sets of proceedings which have separated the parties may be gleaned from the judgments of the Court delivered on 14 November 2006 [NSWSC 1192] and 24 November 2006 ex tempore and revised on 6 December 2006 [NSWSC 1301]. It is unnecessary to repeat the record and the content of those judgments is taken as a given. The Notices of Motion 2 There are before the Court presently two notices of motion, one pursued by JBK Engineering Pty Limited and the second pursued by JBK Design & Construction Pty Limited [together "JBK"]. The motions are materially identical, save for the figures in each of the motions. Essentially the burden of each motion is for the Court to order that the sums of money paid into the Court by orders entered following the second of the judgments to which I have referred, be paid out of Court to the respective JBK entities. The threshold point 3 A preliminary point has been taken by Brick & Block as respondent to the motions. The contention is that the Court should not exercise its discretion to permit a re-opening of the orders which were made following the judgment of 24 November 2006. The essential proposition pursued by Brick & Block in that regard is that special circumstances are required to be shown before a party will be entitled to essentially re-open orders, even made at an interlocutory level, and particularly in circumstances where a different forensic approach is sought to be adopted. The principles 4 Brick & Block has drawn the Court's attention to the principles enunciated and summarised by Heydon JA in Nominal Defendant v Manning (2000) 50 NSWLR 139 and in particular where his Honour in paragraph 72 said: