Denis McFadden & Anor v Daniel John Turnbull & Anor [2011] NSWSC 1294

Supreme Court New South Wales

Medium Neutral Citation: Denis McFadden & Anor v Daniel John Turnbull & Anor [2011] NSWSC 1294 Hearing dates: Wednesday, 26 October 2011 Decision date: 26 October 2011 Jurisdiction: Equity Division - Commercial List Before: Brereton J Decision: Adjudication declared void. Catchwords: BUILDING AND ENGINEERING CONTRACTS - Defendant obtains adjudication determining moneys owed pursuant to building contract - corporation and natural person promisees under building contract - corporation alone is owner of land - whether contract one for the carrying out of residential building work on premises for party whom resides in or proposes to reside in, for purposes of (NSW) Building and Construction Industry Security of Payments Act, 1999, s 7(2)(b) - construction of s 7(2)(b) - sufficient for one party to contract to reside or intend to reside in premises - contract falls within s 7(2)(b) and is not a contract to which Act applies - adjudication void. Legislation Cited: (NSW) Building and Construction Industry Security of Payment Act, 1999, s 4, s 7, s 15 Cases Cited: Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 272 ALR 750; [2010] NSWCA 190 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 Levadetes v Iberian Artisans [2009] NSW SC 641 Category: Principal judgment Parties: Denis McFadden (first plaintiff) Hickory Hill Pty Ltd (second plaintiff) Daniel John Turnbull (first defendant) Philip Martin (second defendant) Representation: Counsel: Dr A Greinke (plaintiffs) Mr B De Buse (first defendant) Solicitors: Turnbull Bowles Lawyers (plaintiffs) Mills Oakley Lawyers (first defendant) File Number(s): 2011/202283