YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110 Hearing dates: 12 April 2019 Decision date: 15 May 2019 Before: Macfarlan JA at [1]; White JA at [2]; Emmett AJA at [94] Decision: (1) Appeal allowed in part. (2) Set aside the orders of the primary judge to the extent his Honour dismissed the appellant's claim in para 21(a) of the appellant's Further Amended Technology and Construction List Statement and ordered the appellant to pay the respondent's costs. (3) Remit the proceeding to the Equity Division for further hearing or redetermination by the primary judge, as the primary judge may determine, or rehearing by another judge of that Division, as the Chief Judge of the Equity Division may determine. (4) Note that whether, and if so to what extent, either party may be permitted to amend its pleadings or particulars, or adduce further evidence, or make further submissions, will be in the discretion of the primary judge or any other judge of the Equity Division to whom the proceeding is referred. (5) Order that the respondent pay into Court $399,000 plus GST and interest that had accrued on that sum that formed part of the moneys paid into Court by the appellant pursuant to the adjudicator's determination and the judgment entered thereon on 6 March 2018 and paid out to the respondent pursuant to orders made on 16 August 2018, to await the final determination of the appellant's claim to set aside the adjudication determination for fraud. (6) Order that the respondent pay the appellant's costs of the appeal. (7) Order that the costs of the proceedings before the primary judge be in the discretion of the judge to whom the proceedings are referred. Catchwords: CIVIL PROCEDURE — Pleadings — Fraud — Appellant alleged judgment founded on adjudication certificate under Building and Construction Industry Security of Payment Act 1999 (NSW) procured by fraud — Substance of fraud allegation not dealt with at first instance due to finding of deficient pleading —Whether fraud sufficiently pleaded — Whether appellant departed from its pleaded case — Whether primary judge erred in dismissing claim without addressing substance of case — Proceedings remitted to Equity Division for further hearing or redetermination Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 20(2B) Cases Cited: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656; [1964] HCA 1 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 62 Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 Sugar Australia Pty Ltd v Southern Ocean Pty Ltd [2013] VSC 535 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2018] NSWSC 1354 Category: Principal judgment Parties: YTO Construction Pty Ltd (Appellant) Innovative Civil Pty Ltd (Respondent) Representation: Counsel: M Pesman SC with D Hand (Appellant) M Christie SC with D Hume (Respondent)