Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416

New South Wales Supreme Court

CITATION : Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416

HEARING DATE(S) : 1 and 4 May 2009 JURISDICTION : Equity Division Technology & Construction List

JUDGMENT OF : Rein J at 1

EX TEMPORE JUDGMENT DATE : 5 May 2009

DECISION : 1. The defendant be permanently restrained from taking any steps to prosecute any adjudication of the second payment claim. 2. The defendant to pay the plaintiff's costs of the proceedings.

CATCHWORDS : CONTRACTS – building, engineering and related contracts – other matters – Building and Construction Industry Security of Payment Act 1999 – second payment claim for items the subject of a previous claim – second claim is precluded by principles of estoppel and the provisions of the Act – appropriate for the Court to intervene prior to an adjudication determination to prevent such a claim from proceeding - ESTOPPEL – issue estoppel – adjudication under Building and Construction Industry Security of Payment Act 1999

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

CATEGORY : Principal judgment

Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362 Boutique Developments Limited v Construction and Contract Services [2007] NSWSC 1042 Bryanston Finance Ltd v de Vries (No. 2) [1976] Ch 63 Buying Systems (Australia) Pty Ltd v Tien Mah Litho Printing Co (PTE) [1986] 5 NSWLR 317 CASES CITED : Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 Energetech Aust Pty Ltd v Sides Engineering Pty Ltd [2005] 226 ALR 362 John Goss Projects v Leighton Contractors & Anor [2006] NSWSC 798 Lifestyle Retirement Projects No.2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 411 Walton v Gardiner (1993) 177 CLR 378