Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911

Supreme Court New South Wales

Medium Neutral Citation: Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911 Hearing dates: 22 December 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Equity Before: Slattery J Decision: Interlocutory injunction granted upon terms that the amount the subject of the adjudication determination be paid into Court. Directions made for the preparation of the proceedings for hearing during the vacation period so that it can be heard and decided early in the new 2017 law term. Catchwords: CONTRACTS – building and engineering and related contracts – statutory right to progress payments – Building and Construction Industry Security of Payment Act 1999 ("the Act") – the Plaintiff head contractor is the subject of an adverse determination by an adjudicator under the Act in favour of the First Defendant – Plaintiff alleges that the adjudicator, the Second Defendant, denied the Plaintiff procedural fairness by not having regard to the Plaintiff's response submissions in the adjudication process – adjudicator found that Plaintiff's response was out of time under the Act, ss 20 and 21 – Plaintiff seeks interlocutory injunction restraining the First Defendant from applying for an adjudication certificate as a result of the adjudicator's determination or from filing any adjudication certificate that may have been obtained – whether there is a serious question to be tried – considerations of the balance of convenience. Legislation Cited: Building and Construction Industry Security of Payments Act 1999 (NSW) Building and Construction Industry Payments Act 2004 (Queensland) Electronic Transactions Act 2000 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Beese v Woodhouse [1970] 1 WLR 586 Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited (2010) 78 NSWLR 393 McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210 RJ Neller Building Pty Limited v Ainsworth [2009] 1 Qd R 390 Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Plaintiff: Parkview Constructions Pty Ltd First Respondent: Total Lifestyle Windows Pty Ltd Representation: Counsel: