Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602

Supreme Court New South Wales

Medium Neutral Citation: Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Hearing dates: 05/11/2014 Decision date: 05 November 2014 Jurisdiction: Equity Division Before: McDougall J Decision: Adjudication determination quashed. Ancillary orders made. Catchwords: BUILDING AND CONSTRUCTION – whether payment claim is valid – where claimant served two payment claims in relation to the same reference date – whether payment claim served in breach of s 13(5) is valid – whether there was a unilateral withdrawal of a payment claim – where withdrawal not consensual – where nothing said or done to indicate claimant no longer relied on payment claim – application of s 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

BUILDING AND CONSTRUCTION – whether service of payment claim valid – where payment claim not accompanied by supporting statement in the form prescribed by regulations – meaning of "must not" – whether requirement to include supporting statement is jurisdictional – whether s 13(7) intended to invalidate service of the payment claim – application of s 13(7) of the Building and Construction Industry Security of Payment Act 1999 (NSW)

BUILDING AND CONSTRUCTION – adjudication determinations – whether as a matter of discretion to nonetheless withhold relief – whether first defendant led into its actions by conduct of the plaintiff – whether to withhold relief as amount of claim relatively small and within jurisdiction of Local Court Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry Security of Payment Amendment Act 2013 Cases Cited: Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237 Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421 Brygel v Stewart-Thornton [1992] 2 VR 387 Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd (2005) 63 NSWLR 385 Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 NC Refractories Pty Limited v Consultant Bricklaying Pty Limited [2013] NSWSC 842 Posner v Collector for Interstate Destitute Persons (Vic) (1946) 74 CLR 461 Trustees of Roman Catholic Church for Diocese of Lismore v TF Woollam& Son [2012] NSWSC 1559 Texts Cited: New South Wales, Parliamentary Debates, Legislative Council, 12 November 2013 (Matthew Mason-Cox) Category: Principal judgment Parties: Kitchen Xchange Pty Limited (Plaintiff) Formacon Building Services Pty Limited (First Defendant) Peter James Halon (Second Defendant) Representation: Counsel: P M Barham (Plaintiff) B DeBuse (Defendant)