The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635

New South Wales Supreme Court

CITATION : The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 3 July 2009

JUDGMENT DATE : 15 July 2009

JUDGMENT OF : Hammerschlag J

DECISION : Orders restraining the first defendant from seeking adjudication of its payment claim dated 31 May 2009.

CATCHWORDS : BUILDING AND ENGINEERING CONTRACTS — payment claim — Building and Construction Industry Security of Payment Act 1999 (NSW) ss 5, 13, 14, 15, 17, 22 – where claimant seeks to re-agitate unsuccessful claim already adjudicated upon as part of a new wider claim – held claimant's statutory entitlement was exhausted and re-use of the machinery of the Act in the circumstances was an abuse of process and should be restrained – Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 and Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 followed

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

Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69 Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Constructions Systems [2009] NSWSC 416 CASES CITED : Brewer v Brewer & Anor (1953) 88 CLR 1 Williams & Ors v Spautz (1992) 174 CLR 509 Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson & Anor (1937) 38 SR (NSW) 13 Kuligowski v Metrobus (2004) 220 CLR 363

The University of Sydney - Plaintiff PARTIES : Cadence Australia Pty Limited - First Defendant Helen Durham - Second Defendant