Greenwood Futures v DSD Builders [2018] NSWSC 1407

Supreme Court New South Wales

Medium Neutral Citation: Greenwood Futures v DSD Builders [2018] NSWSC 1407 Hearing dates: 06/09/2018 Date of orders: 13 September 2018 Decision date: 13 September 2018 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Amended summons dismissed. No order as to costs. Catchwords: BUILDING AND CONSTRUCTION – application to quash adjudicator's determination under Security of Payment Act – whether first and second payment claims issued were invalid because supporting statement was not included – weight of first-instance authority indicates invalidity.

BUILDING AND CONSTRUCTION – where three payment claims issued in the same terms – whether third payment claim supported by a separate reference date – prohibition on serving multiple payment claims referable to same reference date – existence of reference dates to be determined in accordance with the Security of Payment Act – third payment claim validly supported by reference date.

BUILDING AND CONSTRUCTION – whether adjudicator failed to discharge his statutory functions in good faith – where alleged that adjudicator failed to value the construction work – no requirement for adjudicator to value work as the contract determined the progress payment amounts for each milestone.

COSTS – where successful defendant caused the present litigation – where defendant proceeded with disregard for the requirements of the Security of Payment Act to harass the plaintiff – only reason for not awarding costs against defendant is the compensatory and not punitive function of costs – each party to bear its own costs. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Corporations Act 2001 (Cth) Supreme Court Act 1970 (NSW) Cases Cited: Central Projects Pty Ltd v Davidson [2018] NSWSC 523 Clyde Bergemann v Varley Power [2011] NSWSC 1039 Duffy Kennedy Pty Ltd v Lainson Holdings Pty Ltd [2016] NSWSC 371 John Holland Pty Ltd v Made Contracting Pty Ltd [2008] NSWSC 374 Kembla Coal and Coke v Select Civil [2004] NSWSC 628 Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602 Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334 Lewence Construction Pty Ltd v Southern Han Breakfast Point Pty Ltd [2015] NSWCA 288 R J Neller Building Pty Ltd v Ainsworth [2009] 1 Qd R 390 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2018] NSWCA 33 Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd (2016) 260 CLR 240 Category: Principal judgment Parties: Greenwood Futures Pty Ltd (Plaintiff) DSD Builders Pty Ltd (First Defendant) Peter Sarlos (Second Defendant) Representation: Counsel: F P Hicks SC (Plaintiff) B D Kaplan (First Defendant) Solicitors: Keystone Lawyers (Plaintiff) CCS Legal (First Defendant) File Number(s): 2018/200878