Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412

Supreme Court New South Wales

Medium Neutral Citation: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq); Ostwald Bros Pty Ltd (in liq) v Seymour Whyte Constructions Pty Ltd [2018] NSWSC 412 Hearing dates: 8 and 13 March 2018 Decision date: 05 April 2018 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Contract to be rectified by deleting cl 9.1 of the Special Conditions; adjudication determination valid; any judgment obtained as a result to be stayed pending taking of accounts under s 553C of the Corporations Act 2001 (Cth) Catchwords: CONTRACTS – Rectification – Intention – Common intention – where contract comprised formal instrument and additional conditions – where special conditions contained clause purporting to replace clause in formal instrument – where clause in formal instrument was said to be "non-negotiable" prior to agreement – whether contract should be rectified by deleting clause in special condition

BUILDING AND CONSTRUCTION – CORPORATIONS – where subcontractor wound up after obtaining adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether Building and Construction Industry Security of Payment Act remains available to subcontractor – whether subcontractor remains a "claimant" after being wound up – whether decision of Court of Appeal of Victoria on this question is plainly wrong – effect of s 553C of the Corporations Act 2001 (Cth) on subcontractor's rights – whether there should be a stay of any judgment obtained by subcontractor based on an adjudication certificate issued under the Building and Construction Industry Security of Payment Act pending the taking of accounts under s 553C of the Corporations Act Legislation Cited: Bankruptcy Act 1966 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry Security of Payment Act 2002 (Vic) Corporations Act 2001 (Cth) Judiciary Act 1903 (Cth) Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Chase Oyster Bar Pty Ltd v Hamo Industries (2010) 78 NSWLR 393; [2010] NSWCA 190 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWSC 1167 Ex parte Barnett; Re Deveze (1874) 9 Ch App 293, 297 Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 Farah Constructions Pty Limited v Say-Dee Pty Limited (2007) 230 CLR 89; [2007] HCA 22 Fowler v Fowler (1859) 4 De G & J 250; (1859) 45 ER 97 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 GM & AM Pearce & Co Pty Ltd v RGM Australia Pty Ltd [1998] 4 VR 888 Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico [2004] NSWSC 344 Gye v McIntyre (1991) 171 CLR 609; [1991] HCA 60 Issa v Berisha [1981] 1 NSWLR 261 Jadwan Pty Ltd v Department of Health & Aged Care [2003] FCAFC 288; (2003) 145 FCR 1 Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 231 Rojo Building Pty Ltd v Jillcris Pty Ltd [2007] NSWSC 880 Rubana Holdings Pty Ltd v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405 Schokman v Xception Construction Pty Ltd [2005] NSWSC 297 Simic v New South Wales Land and Housing Corporation [2016] HCA 47 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Veolia Water Solutions v Kruger Engineering (No 3) [2007] NSWSC 459 Category: Principal judgment Parties: Seymour Whyte Constructions Pty Ltd (Plaintiff/Cross-Defendant) Ostwald Bros Pty Ltd (in liq) (First Defendant/Cross-Claimant) Doron Rivlin (Second Defendant) Adjudicate Today Pty Limited (Third Defendant) Representation: Counsel: M Christie SC with D Hume (Plaintiff/Cross-Defendant) S Robertson (First Defendant/Cross-Claimant)