Nigro v EVS Group Pty Limited [2012] NSWSC 1545

Supreme Court New South Wales

Medium Neutral Citation: Nigro v EVS Group Pty Limited [2012] NSWSC 1545 Hearing dates: 2 April 2012 Decision date: 14 December 2012 Before: Hislop J Decision: 1. Leave to appeal granted. 2. Appeal dismissed. 3. Plaintiff to pay the defendant's costs of the appeal. Catchwords: Contract - Building and Construction Industry (Security of Payment) Act 1999 - entitlement of non-contractual party to recover moneys paid pursuant to a judgment filed under s 25 of the Act. Legislation Cited: Local Court Act 2007 Building and Construction Industry (Security of Payments) Act 1999 Cases Cited: Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited (2010) 78 NSWLR 393 Dualcorp Pty Limited v Remo Constructions Pty Limited [2009] NSWCA 69, (2009) 74 NSWLR 190 Laws Holdings Pty Limited v Short (1972) 46 ALJR 563 Grave v Blazevic Holdings Pty Limited [2010] NSWCA 324, 79 NSWLR 132 Brodyn Pty Limited v Davenport [2004] NSWCA 394, (2004) 61 NSWLR 421 Texts Cited: Precedents of Pleadings, Bullen, Leake and Jacobs Category: Principal judgment Parties: Remolo Niko Nigro (Plaintiff) EVS Group Australia Pty Limited (Defendant) Representation: B Bradley (Plaintiff) J Hyde (Defendant) CCS Legal (Plaintiff) Wilkinson Building and Construction Lawyers (Defendant) File Number(s): 2011/324420

Judgment

Introduction 1This is an application for leave to appeal from a decision of the Local Court pursuant to s 40(2) of the Local Court Act 2007. It concerns the application of the Building and Construction Industry (Security of Payments) Act 1999 ("the Act"). 2In Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited (2010) 78 NSWLR 393 Spigelman CJ said at [4]: "The Act creates a statutory right to progress payments (s 8 and s 9) which cannot be modified by a contract (s 34). Part 3 of the Act sets out a procedure for recovering such payments that, save for the necessity that a builder initiate the procedure by making a claim (s 13), makes express statutory provision for each step in the dispute resolution process. This extends to provision for an 'adjudicator's determination' (s 22), which is required to be paid (s 23), and the issuance of an adjudication certificate by an authorised nominating authority (s 24), which certificate may be filed in court as a judgment for a debt (s 25)." Section 3 identifies the objects of the Act whilst s 32 provides for the effect of Pt 3 of the Act on civil proceedings. 3The procedure is plainly one designed to facilitate the speedy making and payment of progress claims and, where necessary, the speedy resolution of any disputes - Dualcorp Pty Limited v Remo Constructions Pty Limited [2009] NSWCA 69, (2009) 74 NSWLR 190 at [29].