Lanmac (NSW-ACT) Pty Limited v Andrew Bruce Wallace & Ors [2010] NSWSC 976

New South Wales Supreme Court

CITATION : Lanmac (NSW-ACT) Pty Limited v Andrew Bruce Wallace & Ors [2010] NSWSC 976

HEARING DATE(S) : 27/08/10 JURISDICTION : Equity Division Technology and Construction List

JUDGMENT OF : Einstein J

EX TEMPORE JUDGMENT DATE : 27 August 2010

1. The injunctions issued by Smart AJ on 20 August 2010 and extended by Hammerschlag J on 27 August 2010 be dissolved. 2. Pursuant to s 67 of the Civil Procedure Act 2005 the proceedings commenced by summons filed 19 August 2010 be stayed until payment into Court by the plaintiff of the amounts of the two adjudication determinations the subject of these proceedings and the adjudicator's costs, or alternatively the provision of a bank guarantee in terms acceptable to the Court but payable to the third defendant for those amounts. DECISION : 3. The plaintiff pay the third defendant's costs of today. 4. Revoke the order made by Hammerschlag J that the proceedings be before the Court on Monday 30 August 2010. 5. Order that these orders be entered forthwith.

CATCHWORDS : Building and Construction Industry Security of Payment Act 1999 - Plaintiff against whom a judgment has been entered who brings proceedings seeking to prevent a party from relying on that judgment without seeking to set aside the judgment is aware that section 25 (4) of the Act requiring security will not be triggered - Court cautious to ensure justice between the parties but also to ensure that the legislation under which the application is brought is not circumvented

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW)