Romeo v TQM Design and Construct Pty Limited [2013] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Romeo v TQM Design and Construct Pty Limited [2013] NSWCA 72 Hearing dates: 3 April 2013 Decision date: 03 April 2013 Before: Bathurst CJ at [1]; McColl JA at [16]; Ward JA at [17] Decision: 1. Appeal allowed. 2. The orders made by the primary judge in paras 1 - 5 of his Honour's orders should be set aside and in lieu thereof the matter should be remitted to the District Court for hearing on the merits. 3. The respondents should pay the appellants' costs of the appeal and the costs of the application for summary judgment in the Court below. [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: PROCEDURE - summary judgment -defence struck out - whether pleaded defences could arguably be made out. Legislation Cited: Building and Construction Industry Security of Payments Act 1999, s 7 Cases Cited: Commissioner of Taxation v Sara Lee Household & Body Care (Aust) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520 Category: Principal judgment Parties: Anna Maria Romeo (First Appellant) Giuseppe Romeo (Second Appellant) TQM Design and Construct Pty Limited (First Respondent) Maroun Taouk (Second Respondent) Representation: Solicitors: Proctor Phair Lawyers (Appellants) Magna Carta Lawyers (Respondents - submitting appearance) File Number(s): 2010/341969 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: [2011] NSWDC 143 Date of Decision: 2011-09-28 00:00:00 Before: Levy SC DCJ File Number(s): 2010/341969