TQM Design & Construct Pty Ltd & Anor v Romeo & Anor [2011] NSWDC 143

District Court New South Wales

Medium Neutral Citation: TQM Design & Construct Pty Ltd & Anor v Romeo & Anor [2011] NSWDC 143 Hearing dates: 27 & 28 September 2011 Decision date: 28 September 2011 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The defence filed by the defendants on 27 June 2011 is struck out; 2.Summary judgment is entered in favour of the first and second plaintiffs against the first and second defendants in the sum of $137,500 in accordance with Uniform Civil Procedure Rules Pt 13 r 13.1 and s 14(4) and s 15 of the BCISP Act ; 3.In accordance with s 100 and s 101 of the Civil Procedure Act 2005, pre-judgment interest o n the amount of $137,500 between 1 March 2010 and 27 September 2011 is assessed in the sum of $21,676.88 ; 4.The total judgment in favour of the plaintiffs against each defendant, including pre-judgment interest, is in the sum of $159,176.88 ; 5.The first and second defendants are to pay the costs of the plaintiffs in respect of the motion filed on 3 August 2011, and of the proceedings, on the ordinary basis unless otherwise entitled; 6.Liberty to apply on 7 days notice if further orders are required . [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: Building Contracts - whether plaintiffs have established entitlement to summary judgment pursuant to the provisions of the Building and Construction Industry Security of Payments Act 1999 Legislation Cited: Building and Construction Industry Security of Payments Act 1999, s 5, s 7, s 11, s 13, s 14, s 15, s 16, s 31 Civil Procedure Act 2005, s 100, s 101 Evidence Act 1995, s 160 Home Building Act 1989 Uniform Civil Procedure Rules 2005, r 14.28 Cases Cited: Bittania Pty Ltd v Parkline Constructions Pty Ltd [2006] NSWCA 238; (2006) 67 NSWLR 9 Downer EDI Works Pty Ltd v Parsons Brinckerhoff Australia Pty Ltd [2011] NSWCA 78 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Randhawa v Serrato [2009] NSWSC 170 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Tsoukatos v Mustafa [2007] NSWSC 614 Texts Cited: Hansard, NSW Legislative Assembly, 29 June 1999, Second Reading Speech Category: Principal judgment Parties: TQM Design & Construct Pty Ltd (First plaintiff/Applicant) Maroun Taouk (Second plaintiff) Anna Maria Romeo (First defendant/ Respondent) Giuseppe Romeo (Second defendant/ Respondent) Representation: Ms D Dinnen (Plaintiffs/Applicants) Mr D Allen (Defendants/Respondents) Magna Carta Lawyers (Plaintiffs/Applicants) Proctor Phair Lawyers (Defendants/ Respondents) File Number(s): 2010/341969