Seabreeze Manly v Toposu [2014] NSWSC 1097

Supreme Court New South Wales

Medium Neutral Citation: Seabreeze Manly v Toposu [2014] NSWSC 1097 Hearing dates: 08/08/2014 Decision date: 08 August 2014 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Summons dismissed with costs. Money in court to be paid out to first defendant forthwith. Costs to be assessed on the indemnity basis after 28 May 2013. Catchwords: BUILDING AND CONSTRUCTION - payment claims - whether there was a 'construction contract' in accordance with the Building and Construction Industry Security of Payments Act 1999 (NSW), s4 - definition and construction of 'construction contract' - definition and construction of 'arrangement'

COSTS - departing from the general rule - where offer of compromise made Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Calderbank v Calderbank [1976] Fam Law 93 Class Electrical Services Pty Ltd v Go Electrical Pty Ltd [2013] NSWSC 363 Machkevitch v Andrew Building Constructions [2012] NSWSC 546 Category: Principal judgment Parties: Seabreeze Manly Pty Ltd (Plaintiff) Toposu Pty Ltd (First Defendant) John Lewer (Second Defendant) Representation: Counsel: D Hand (Plaintiff) D S Weinberger (First Defendant) Solicitors: Bartier Perry (Plaintiff) HWL Ebsworth (First Defendant) File Number(s): 2014/99793

Judgment (ex tempore - revised 8 august 2014) 1HIS HONOUR: The plaintiff (Seabreeze) seeks to restrain enforcement of a determination made by the second defendant (the adjudicator), under the Building and Construction Industry Security of Payment Act 1999 (NSW), in favour of the first defendant (Toposu). The key issue is whether there was, as Toposu contends and the adjudicator concluded, a 'construction contract', as defined in the Security of Payment Act, between Seabreeze and Toposu.