NSW Land and Housing Corporation -v- DJ's Home and Property Maintenance Pty Ltd (in liquidation) [2013] NSWSC 1167

Supreme Court New South Wales

Medium Neutral Citation: NSW Land and Housing Corporation -v- DJ's Home and Property Maintenance Pty Ltd (in liquidation) [2013] NSWSC 1167 Hearing dates: 7 August 2013 Decision date: 23 August 2013 Jurisdiction: Equity Division - Technology and Construction List Before: Hammerschlag J Decision: Fund to be disbursed as to $20,000 to the Plaintiff, $3,000 to the Fourth Defendant and the balance to the Liquidators Catchwords: CORPORATIONS - Winding up - Corporations Act 2001 (Cth) ss 500(1), 501, 569(1) - BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) Div 2A ss 26A, 26B, 26C ("the SoP Act") - Contractors Debts Act 1997 (NSW) ss 5, 6, 7, 8, 9(1), 11(1) ("the CD Act") - whether service of a payment withholding request under s 26A of the SoP Act on a company creates a charge over the monies retained in favour of the claimant - Held no charge created - whether service of a payment withholding request is an attachment put in place against the property of the company within s 500(1) of the Corporations Act - Held: that it is - whether the obtaining of a debt certificate under s 7 of the CD Act and service of a notice of claim under s 8(1) of the CD Act is the institution of proceedings to attach a debt due to a company within s 569(1) of the Corporations Act - Held that it is - whether payment out of monies retained as a consequence of the service of a payment withholding request under the SoP Act to the unpaid person as a consequence of the service of a notice of claim is an amount received by the creditor as a result of the attachment - Held that it is Legislation Cited: Corporations Act 2001 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW) Contractors Debts Act 1997 (NSW) Cases Cited: McPherson Thom & Co v Coombie Pastoral Co Pty Ltd [1929] VLR 295 Re Potts; Ex parte Taylor [1893] 1 QB 648 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1; Commissioner of Taxation v Donnelly (1989) 25 FCR 432 Commissioner of Taxation v Macquarie Health Corporation Ltd (1998) 88 FCR 451 Bruton v Commissioner of Taxation (2009) 239 CLR 346 Firth v Centrelink (2002) 55 NSWLR 451 Texts Cited: Edward I Sykes and Sally Walker, The Law of Securities, 5th ed (1993) The Law Book Company Category: Principal judgment Parties: NSW Land and Housing Corporation - Plaintiff DJ's Home and Property Maintenance Pty Ltd (in liquidation) - First Defendant Zed Dujkovic - Second Defendant Phontos Legal - Third Defendant YHY Building Services Pty Ltd - Fourth Defendant Wheeler Complete Fencing Pty Ltd - Fifth Defendant R. Moody and A. Barnden - Sixth Defendant Representation: Counsel: D. Jury (Solicitor) - Plaintiff T. Lynch - First Defendant and Sixth Defendant Z. Dujkovic - Second Defendant - Self-Represented R. Freeman - Third Defendant Y. Yuhua (Director) - Fourth Defendant Solicitors: HWL Ebsworth Lawyers - Plaintiff Wyndham Prem Commercial Lawyers - First Defendant and Sixth Defendant Phontos Legal - Third Defendant File Number(s): 2013/182750