Hanave Pty Ltd -v- Nahas Construction (NSW) Pty Limited [2012] NSWSC 888

Supreme Court New South Wales

Medium Neutral Citation: Hanave Pty Ltd -v- Nahas Construction (NSW) Pty Limited [2012] NSWSC 888 Hearing dates: 30 July 2012 Decision date: 30 July 2012 Jurisdiction: Equity Division - Technology and Construction List Before: Hammerschlag J Decision: Payment of monies in Court to the first defendant was not in contravention of a requirement under Division 2A of the Building and Construction Industry Security of Payment Act 1999 (NSW) Catchwords: BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW), DIVISION 2A - Plaintiff (principal contractor) sought to quash adjudication determination obtained by the first defendant (respondent) and paid monies into Court pending its challenge - thereafter the second defendant (claimant), a creditor of the first defendant, which had itself obtained an adjudication determination against the first defendant served on the plaintiff a payment holding request under s 26A of the Act - later the plaintiff's challenge failed and the monies in Court were paid out to the first defendant discharging the plaintiff's debt to the first defendant - the second defendant contended that the plaintiff had discharged its obligation as principal contractor to pay money under a contract to the first defendant as respondent in contravention of a requirement under Division 2A of the Act and was jointly and severally liable for the first defendant's debt to the second defendant - HELD - no contravention of the division because the payment out of Court was not discharge of the principal contractor's obligation as contemplated by s 26C(1) of the Act. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Pilmer v HIH Casualty& General Insurance Limited (No 2) (2004) 90 SASR 465 Duncan v National Australia Bank Limited (2006) 95 SASR 208 Category: Principal judgment Parties: Hanave Pty Ltd ACN 001 416 226 - Plaintiff Nahas Construction (NSW) Pty Limited ACN 124 452 786 - First Defendant Waco Kwikform Ltd ACN 002 835 396 - Second Defendant Deputy Commissioner of Taxation - Third Defendant BWE Electrical Pty Ltd ACN 108 762 607 - Fourth Defendant Pipeline Plumbing Developments Pty Ltd ACN 128 609 162 - Fifth Defendant Representation: Counsel: G.J. McVay - Plaintiff L.M. Pozniak - First Defendant M.A . Ashhurst SC - Second Defendant N.J. Williams SC with M.J. O'Meara - Third Defendant A. Giurtalis - Fourth Defendant F.G. Kalyk - Fifth Defendant Solicitors: Gilbert Mane Solicitors - Plaintiff Landerer & Company - First Defendant HWL. Ebsworth - Second Defendant Australian Government Solicitor - Third Defendant Salim Rutherford Lawyers - Fourth Defendant Knight Lawyers - Fifth Defendant File Number(s): 2012/179470