Draybi One Pty Ltd v Norms Carpentry & Joinery Pty Ltd [2013] NSWSC 1676

Supreme Court New South Wales

Medium Neutral Citation: Draybi One Pty Ltd v Norms Carpentry & Joinery Pty Ltd [2013] NSWSC 1676 Hearing dates: 7 November 2013 Decision date: 14 November 2013 Jurisdiction: Equity Division - Technology and Construction List Before: Stevenson J Decision: Separate questions answered Catchwords: PRACTICE AND PROCEDURE - civil - interlocutory issues - determination of separate questions

BUILDING AND CONSTRUCTION -Building and Construction Industry Security of Payment Act 1999 -- determination of reference date - whether two identical payment claims were in respect of the same reference date - whether the Act precludes service of second payment claim Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Uniform Civil Procedure Rules 2005 Cases Cited: Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571 Spankie v James Trowse Constructions Pty Ltd [2010] QCA 355 Category: Separate question Parties: Draybi One Pty Ltd (plaintiff) Norms Carpentry & Joinery Pty Limited (first defendant) Renee Spencer (second defendant) Representation: Counsel: F G Kalyk (plaintiff) F F F Salama (first defendant) Solicitors: Veritas Legal (plaintiff) Paramonte Legal (first defendant) File Number(s): SC 2013/310405 Publication restriction: Nil

Judgment 1These proceedings relate to a dispute under the Building and Construction Industry Security of Payment Act 1999 ("the Act"). 2The plaintiff, Draybi One Pty Ltd, seeks a declaration that a determination made on 6 September 2013 ("the Determination") by the second defendant, Ms Renee Spencer, an adjudicator appointed under the Act ("the Adjudicator"), is void because it was made without jurisdiction. 3The Adjudicator determined that Draybi should pay to the first defendant, Norms Carpentry & Joinery Pty Ltd, $39,328. 4Draybi commenced these proceedings on 15 October 2013 and, on the same day, filed a notice of motion seeking summary judgment. 5That notice of motion was listed for hearing before me on 7 November 2013. 6The parties agreed that, rather than deal with the matter summarily, I should decide certain questions separately pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005. 7Those separate questions are as follows: (1)Whether, on the proper construction of the subject contract, a reference date after 31 August 2012 was determined under the contract (as provided in s 8(2)(a) of the Act). (2)If, on its proper construction, the subject contract made no express provision with respect to the matter of reference dates such that the provisions of s 8(2)(b) of the Act apply, whether pursuant to those provisions, there was a reference date after 31 August 2012. (3)Whether the first defendant was precluded under s 13(5) of the Act from serving its payment claim dated 23 July 2013.