Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17

District Court New South Wales

Medium Neutral Citation: Fu Xing Pty Ltd v Sidway Constructions Pty Ltd [2017] NSWDC 17 Hearing dates: 7 February 2017 Date of orders: 07 February 2017 Decision date: 16 February 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The plaintiff's notice of motion for summary judgment under r 13.1 Uniform Civil Procedure Rules 2005 (NSW) and s 15(2)(a)(i) Building and Construction Industry Security of Payment Act 1999 (NSW) for the sum of $598,083.80 is dismissed. (2) The costs of the motion are reserved to the trial judge. (3) Defendant's Defence in 14 days (21 February 2017). (4) Plaintiff to file any further affidavits/evidence in these proceedings 28 days thereafter (21 March 2017). (5) Defendant's affidavits/evidence in reply 6 weeks thereafter (2 May 2017). (6) Plaintiff's affidavits/evidence in reply 2 weeks thereafter (16 May 2017). (7) Note the parties have been encouraged to consider mediation. (8) The exhibits from the summary judgment application are to remain with the file (as costs have been reserved). (9) Parties are referred to the List Judge for allocation of a hearing date (estimate 3 day matter), such hearing date to occur after 16 May 2017. Catchwords: BUILDING AND CONSTRUCTION – application for summary judgment – defendant serves notice on plaintiff terminating contract – disputed issue of fact as to whether contract terminated on that date or after service of the payment claim the subject of the summary judgment application – whether document served is in fact a payment claim – application for summary judgment dismissed – no issue of principle Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13, 14 and 15 Uniform Civil Procedure Rules 2005 (NSW), r 13.1 Cases Cited: Hill (as Trustee for Ashmore Superannuation Benefit Fund) v Halo Architectural Design Services Pty Ltd [2013] NSWSC 865 Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Construction Pty Ltd [2016] HCA 52 Category: Procedural and other rulings Parties: Plaintiff: Fu Xing Pty Ltd Defendant: Sidway Constructions Pty Ltd Representation: Counsel: Plaintiff: Mr R Green (solicitor) Defendant: Mr N Kidd SC