Filadelfia Projects Pty Limited v Entirity Business Services Pty Limited & Anor (No 2) [2011] NSWSC 116

Supreme Court New South Wales

Medium Neutral Citation: Filadelfia Projects Pty Limited v Entirity Business Services Pty Limited & Anor (No 2) [2011] NSWSC 116 Hearing dates: 14 to 17 February 2011 Decision date: 04 March 2011 Before: Ball J Decision: The court orders that: 1. The first defendant be restrained from seeking or enforcing an Adjudication Certificate under the Building and Construction Industries Security of Payment Act 1999 (NSW) in respect of an adjudication determination of Adjudicator Sullivan dated 23 March 2010. 2. The plaintiff be at liberty to withdraw the sum of $500,000 from the controlled moneys account held by its solicitors and referred to in paragraph 2 of the short minutes of order made by consent by the court on 30 August 2010. 3. The first defendant pay the plaintiff's costs of the proceedings. Catchwords: CONTRACT - informal agreements - construction contracts - relevance of post contractual conduct in determining who the parties to the contract are - objective determination - contract found between builder and contractor, not developer and contractor. PROCEDURE - adjudication application under Building & Construction Industry Security of Payment Act 1999 - natural justice - failure to supply same documents to adjudicator and opposing party - denial of natural justice - whether relief should be refused in circumstances where conduct not deliberate and issue determined on the merits by the court - abuse of process - deliberately withheld relevant documents from adjudicator - no duty of full disclosure in adjudication process Legislation Cited: Building & Construction Industry Security of Payment Act 1999 (NSW) Industrial Relations Act 1996 (NSW) Payroll Tax Act 2007 (NSW) Workers Compensation Act 1987 (NSW) Cases Cited: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 Fifty Property Investments v O'Mara [2006] NSWSC 428 Filadelfia Projects Pty Limited v Entirity Business Services Pty Ltd [2010] NSWSC 473 Garrard t/as Arthur Andersen & Co v Email Furniture Pty Limited (1993) 32 NSWLR 662 Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603 Shorten v David Hurst Constructions Pty Limited [2008] NSWSC 546 Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679 Towry Law plc v Chubb Insurance Co of Europe SA [2008] NSWSC 1352 Category: Principal judgment Parties: Filadelfia Projects Pty Limited (Plaintiff) Entirity Business Services Pty Limited (First Defendant) Master Plumbers and Mechanical Contractors Association of New South Wales (Second Defendant) Representation: Counsel: Mr M Rudge SC (Plaintiff) Mr I George (Plaintiff) In Person (First Defendant) No Appearance (Second Defendant) Solicitors: Veritas Legal (Plaintiff) In Person (First Defendant) No Appearance (Second Defendant) File Number(s): 2009/331921