Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371

Supreme Court New South Wales

Medium Neutral Citation: Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371 Hearing dates: 30 March 2016 Decision date: 07 April 2016 Jurisdiction: Equity Before: Meagher JA Decision: 1. Dismiss the plaintiff's notice of motion for summary judgment. 2. Dismiss the defendant's notice of motion for a stay of execution. 3. Make no order as to the costs of either of the motions in orders 1 and 2. 4. Grant leave to each party to apply to vary order 3. That leave is to be exercised within seven days of the date of these orders and by way of the lodgement with my Associate, and service on the other party of written submissions, not to exceed three pages, in support of any different order sought. If that leave is exercised, the other party should respond by written submissions, again not exceeding three pages, to be lodged with my Associate and served within seven days of receipt of the earlier written submissions. The question of costs will then be determined on the papers. 5. The proceedings listed for further directions in the Technology and Construction List on 15 April 2016. Catchwords: BUILDING AND CONSTRUCTION – progress payments – application for summary judgment in respect of debt due under s 15(2)(a)(i) of Building and Construction Industry Security of Payment Act 1999 (NSW) – where defendant made admission that circumstances in s 15(1) existed – where clear on evidence that payment claims of head contractor served without supporting statement contrary to s 13(7) – whether defendant should be permitted to withdraw admission – whether service contrary to s 13(7) has effect of there being no service within s 14(4)(a) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 15 Building and Construction Industry Security of Payment Regulation 2008 (NSW), cl 19 Cases Cited: Damberg v Damberg [2001] NSWCA 87; 52 NSWLR 492 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; 74 NSWLR 190 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334 Category: Procedural and other rulings Parties: Duffy Kennedy Pty Limited (Plaintiff) Lainson Holdings Pty Ltd (Defendant) Representation: Counsel: J Doyle (solicitor) (Plaintiff) M Ashhurst SC with L Corbett (Defendant)