Dial D Pty Ltd as trustee for the Smith Street Unit Trust v Kingston Building (Australia) Pty Ltd [2013] NSWCA 277

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dial D Pty Ltd as trustee for the Smith Street Unit Trust v Kingston Building (Australia) Pty Ltd [2013] NSWCA 277 Hearing dates: 13 August 2013 Decision date: 28 August 2013 Before: Ward JA at [1]; Leeming JA at [96]; Tobias AJA at [97] Decision: 1. To the extent necessary, grant leave to appeal. 2. Appeal allowed in part. 3. The declaration made in paragraph 1 of the orders of Stevenson J of 5 March 2013 be set aside. 4. Save as above, appeal dismissed. 5. If one or both of the parties seeks an order for costs of the appeal, it or they should serve short written submissions as to costs of the appeal by 9am on 30 August 2013. [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: CONTRACTS - building, engineering and related contracts - the contract - construction of contract - whether further progress claim could be made - whether Superintendent entitled to issue progress and other payment certificate in month when no work done and contractor did not issue progress certificate - whether Superintendent's progress certificate void Legislation Cited: Building and Construction Industry (Security of Payments) Act 1999 Cases Cited: 620 Collins Street Pty Ltd v Abigroup Contractors Pty Ltd (No 2) [2006] VSC 491 Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1997) 14 BCL 215 Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 Daysea Pty Ltd v Watpac Aus Pty Ltd [2001] QCA 49 Gillard v Hunter Wire Products Pty Ltd t/as Hunter Screen Products (No 2) [2001] NSWCA 450 Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388 Merritt Cairns Constructions Pty Ltd v Wulguru Heights Pty Ltd [1995] 2 Qd R 521 Metwally v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 Re Concrete Constructions Group Pty Ltd [1997] 1 Qd R 6 Thiess Constructions Pty Ltd v Pavements & Excavations Pty Ltd (2000) 16 BCL 42 Walker v Wilson (1991) 172 CLR 195 Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 Zauner Construction Pty Ltd v No 2 Pitt Street Pty Ltd [2001] VSC 154 Category: Principal judgment Parties: Dial D Pty Ltd as trustee for the Smith Street Unit Trust (Appellant) Kingston Building (Australia) Pty Ltd (Respondent) Representation: Counsel: F Corsaro SC with F G Kalyk (Appellant) F P Hicks (Respondent) Solicitors: Keystone Lawyers (Appellant) Moray & Agnew Lawyers (Respondent) File Number(s): CA 13/077168 Decision under appeal Jurisdiction: 9111 Citation: Kingston Building (Australia) Pty Ltd v Dial D Pty Ltd as trustee for the Smith Street Unit Trust [2013] NSWSC 173 Date of Decision: 2013-03-05 00:00:00 Before: Stevenson J File Number(s): SC 13/027998