Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334

Supreme Court New South Wales

Medium Neutral Citation: Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334 Hearing dates: 22 March 2016; written submissions 24 March 2016 Decision date: 31 March 2016 Jurisdiction: Equity Before: Meagher JA Decision: 1. Dismiss Removals' application under s 459G of the Corporations Act 2001 to set aside the statutory demand dated 11 February 2016. 2. Amended summons otherwise dismissed. 3. Order the amount of $382,015.41 paid into Court by Removals be released and paid to Dynabuild. 4. Order Removals pay Dynabuild's costs of the proceedings. 5. Make no order as to the costs of the second and third defendants and grant liberty to them to apply within 14 days. 6. Direct Dynabuild to notify the second and third defendants of the making of these orders. Catchwords: BUILDING AND CONSTRUCTION – adjudication of payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether payment claim should be set aside – where payment claim made for same amount and works as earlier payment claim and no works completed after earlier claim – where building contract allowed for later reference date – whether two payment claims made in relation to same reference date contrary to s 13(5) – where earlier payment claim not accompanied by supporting statement contrary to s 13(7) – whether earlier payment claim served for purpose of s 13(5) – whether payment claim made in contravention of s 13(8) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 5, 8, 9, 13, 14, 15, 17, 24 Corporations Act 2001 (Cth), ss 459E, 459F, 459G Supreme Court Act 1970 (NSW), s 69 Cases Cited: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Clyne v Deputy Commissioner of Taxation (Cth) [1981] HCA 40; 150 CLR 1 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 Grid Projects NSW Pty Ltd v Proyalbi Organic Set Plaster Pty Ltd [2012] NSWSC 1571 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Nazero Group Pty Ltd v Top Quality Construction Pty Ltd [2015] NSWSC 232 Trustees of the Roman Catholic Church for the Diocese of Lismore v TF Woollam & Son [2012] NSWSC 1559 Veer Build Pty Ltd v TCA Electrical and Communication Pty Ltd [2015] NSWSC 864 Category: Principal judgment Parties: Kyle Bay Removals Pty Ltd (Plaintiff) Dynabuild Project Services Pty Ltd (First Defendant) Philip Martin (Second Defendant) Adjudicate Today Pty Ltd (Third Defendant) Representation: Counsel: T.O. Bland with S.J. McMahon (Plaintiff) M. Christie SC (First Defendant)