Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320

New South Wales Supreme Court

CITATION : Roseville Bridge Marina Pty Ltd v Bellingham Marine Australia Pty Ltd [2009] NSWSC 320

HEARING DATE(S) : 6 March 2009

JUDGMENT DATE : 27 April 2009

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

There was a binding agreement whereby Bellingham was not entitled to recover payment for certain additional works included in its Payment Claim and the Adjudication. Bellingham was not contractually entitled to certain of the amounts allowed by the Adjudicator. The purpose of s 34 is to prohibit the exclusion or modification of the right to receive the contractual remuneration by progress payments, not to prohibit the exclusion or modification of the contractual remuneration simpliciter. The agreement related to Bellingham's contractual remuneration but did not exclude its right to receive that contractual remuneration by progress payments in accordance with the Act, and was not avoided by s 34. The subsequent agreement for settlement of 5158/08 could only preclude Bellingham from pursuing a payment claim if it were an implied term that pending final determination, Bellingham would not exercise its rights to claim a progress payment under the Act, which would be avoided by s 34(2). Bellingham was entitled to proceed under the Act in respect of the "final payment", notwithstanding the terms on which proceedings 5158/08 were resolved. A principal who has suffered an adverse adjudication and pays the adjudicated amount (whether or not the adjudication is registered as a judgment) may bring proceedings for restitution of the sum paid and re-agitate all the issues that were argued before the adjudicator. If the principal has a sufficiently arguable case and the discretionary considerations otherwise favour that course, enforcement of an adjudication registered as a judgment may be stayed or restrained on an interlocutory basis. If the principal succeeds on a final basis, enforcement of an adjudication registered as a judgment may be permanently stayed or restrained. DECISION : (1) Declare that pursuant to a binding an enforceable agreement made between the plaintiff and the defendant by exchange of emails on or about 14 July 2008, the defendant is not entitled to recover payment for work completed under the construction contract dated 31 July 2007, or additional work or variations in connection therewith (other than demolition works) completed prior to 14 July 2008, including the work described as "variations" (other than demolition works) in its Payment Claim dated 8 December 2008 and the Adjudication dated 12 February 2009, over and above the agreed sum of $441,424.50. (2) Order that the defendant be permanently restrained from issuing execution or a creditor's statutory demand or otherwise enforcing any judgment that it might obtain upon registration of the Adjudicator's Determination of 11 February 2009, to the extent that such judgment exceeds principal of $57,611.40 and interest thereon. (3) Order that the defendant pay the plaintiff's costs.