Supreme Court New South Wales Medium Neutral Citation: Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust v DSD Builders Pty Ltd [2018] NSWSC 984 Hearing dates: 26 June 2018 Decision date: 26 June 2018 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiff to cause amount of determination to be paid into court Catchwords: BUILDING AND CONSTRUCTION – challenge to adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) – whether plaintiff should pay into court the amount of the determination pending determination of the challenge – where plaintiff a trustee of unit trust – where plaintiff has insufficient cash funds to pay amount of determination into court – where no evidence of financial position of unit holders – whether as a matter of discretion court should not require the amount of determination to be paid into court Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232 Category: Procedural and other rulings Parties: Goodwin Street Developments Pty Ltd as trustee for Jesmond Unit Trust (Plaintiff) DSD Builders Pty Ltd (Defendant) Representation: Solicitors: Richard Green Construction Lawyers (Plaintiff) CCS Legal Pty Limited (Defendant) File Number(s): SC 2018/193623 EX TEMPORE Judgment (REVISED) 1. In these proceedings, which were commenced on 22 June 2018, the plaintiff, Goodwin Street Developments Pty Ltd, seeks to quash a determination made in favour of the first defendant, DSD Builders Pty Ltd, in the amount of pay $265,510.11 under the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act"). 2. Today is the first return date of the summons. 3. The adjudicator has written to the Court indicating that he submits to any order the Court makes other than as to costs. Mr Wilson appears today for the DSD, and Mr Green for Goodwin Street. 4. Goodwin Street and DSD are in agreement as to the regime that should now be adopted to prepare this matter for urgent hearing. I propose to make directions for the service of evidence and to set the matter down for hearing on 6 August 2018. 5. The matter which divides the parties is whether, as is customary in cases such as this, the plaintiff should pay into Court the adjudicated amount pending resolution of the underlying dispute. 6. Mr Green draws attention to the decision of Hammerschlag J in Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232. In that case, his Honour observed that, notwithstanding the usual practice in the Technology & Construction List whereby the Court requires a party challenging a determination under the Act to pay into Court the amount of the determination pending resolution of the application, that requirement is not set in stone and can as a matter of discretion be waived. 7. Mr Green seeks an order that Goodwin Street not pay into Court the full amount of the adjudication determination in this case upon the basis that, although the determination is in the sum of $265,510.11, Goodwin Street itself only has assets of some $33,000 in its bank account. 8. However, Goodwin Street is a trustee of the Jesmond Unit Trust. The units in that trust are issued to six persons described in an affidavit sworn today by Mr Jeffrey Stokes as being the "six partners" in the venture pursuant to which the relevant construction took place. 9. There is no evidence before me as to the financial position of those partners. Nor is there evidence as to why one or more of those partners cannot advance funds to Goodwin Street to enable it to comply with what would be its usual obligation to pay into Court, as security for the application it now makes under the Act, an amount equal to the adjudicated amount. 10. In the absence of such evidence, I see no reason to exercise my discretion to not follow the Court's usual practice and require that the adjudicated amount be paid into Court. 11. In those circumstances I make the orders in the document that I have initialled today and placed with the papers. That requires the plaintiff to pay into Court the adjudicated amount by 2 July 2018, makes provision for the parties' evidence to be served, and fixes the matter for hearing on 6 August 2018. 12. I make the usual order for hearing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2018