Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445

Supreme Court New South Wales

Medium Neutral Citation: Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445 Hearing dates: 20/10/2014 Decision date: 20 October 2014 Jurisdiction: Equity Division Before: McDougall J Decision: Summons dismissed with costs. Catchwords: BUILDING AND CONSTRUCTION - adjudication applications - whether there was a valid construction contract between the parties - where name in contract not the same as name on adjudication application - where invoices issued in a different name to the name in the construction contract - whether correct specification of ACN and ABN evidence an intention that the first defendant be "Contractor" to the construction contract - whether sufficient to show construction contract between the parties

BUILDING AND CONSTRUCTION - adjudication applications - whether first defendant gave plaintiff notice of intention to seek adjudication of the payment claim - where payment claim sent by facsimile transmission to facsimile number in contract - where facsimile transmission number in contract actually for a different company - where evidence that the plaintiff received s 17(2)(a) notice - whether sufficient evidence that letter sent to defendant asking them to no longer utilise the facsimile transmission number in the contract before notice was sent to that number - whether failure to give notice under s 17(2)(a) is jurisdictional error - application of s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

BUILDING AND CONSTRUCTION - adjudication applications - whether adjudication application served on plaintiff - whether service of adjudication application is jurisdictional - where respondent could not lodge adjudication response even if adjudication application were served - where adjudication application was received - application of s 17(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Associated Midland Corporation Ltd v Bank of New South Wales (1984) 51 ALR 641 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421 Category: Principal judgment Parties: Douglas Aerospace Pty Ltd (Plaintiff) Indistri Engineering Albury Pty Ltd (First Defendant) Johanne Tobin (Second Defendant) Representation: Counsel: N Obrart (Plaintiff) CA Botsman (First Defendant) Solicitors: Keith Hurst & Associates (Plaintiff) Kell Moore (First Defendant) File Number(s): 2014/236651