Machkevitch v Andrew Building Constructions [2012] NSWSC 546

Supreme Court New South Wales

Medium Neutral Citation: Machkevitch v Andrew Building Constructions [2012] NSWSC 546 Hearing dates: 16/04/2012 and 17/04/2012 Decision date: 24 April 2012 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Summons dismissed with costs. Declarations as sought in cross-claim. Catchwords: [BUILDING AND CONSTRUCTION] - Building and Construction Industry Security of Payment Act 1999 (NSW) - preliminary issue - whether court should leave matter to be disputed before another adjudicator - adjudication determination - meaning of "arrangement" - whether there was an "arrangement" amounting to a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) - whether the definition of "construction contract" requires that an "arrangement" must be legally enforceable - whether the defendant's attempts to press its payment claims against the plaintiff is an abuse of the processes of the Act.

[ESTOPPEL] - Issue estoppel - Anshun estoppel whether the defendant is estopped (by way of narrow or Anshun estoppel), by reasons of the determination of the first adjudicator, from pressing its claim under the alleged construction contract.

[PROCEDURE] - civil - documents - cross-claim - application for leave to file a cross-claim - whether court should grant declaratory relief in accordance with the cross-claim. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Home Building Act 1989 (NSW) Cases Cited: Okaroo Pty Limited v Vos Construction and Joinery Pty Limited [2005] NSWSC 45 Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 Australian Competition and Consumer Commission v CC (NSW) Pty Ltd (No 8) (1999) 165 ALR 468 Dualcorp v Remo Constructions [2009] NSWCA 69 Watpac Constructions v Austincorp [2010] NSWSC 168 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Urban Traders v Paul Michael [2009] NSWSC 1072 Category: Procedural and other rulings Parties: Alexandre Machkevitch (Plaintiff/Cross-Defendant) Andrew Building Constructions Pty Limited (ACN 001 123 619) Defendant/Cross-Claimant) Representation: Counsel: Michael Christie SC / N Shaw (Plaintiff/Cross-Defendant) D E Grieve QC / F G Kalyk (Defendant/Cross-Claimant) Solicitors: Harris Friedman (Plaintiff/Cross-Defendant) William Cotsis & Associates (Defendant/Cross-Claimant) File Number(s): 2012/99684