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| Summaries With Link (Five Minute Read) |
Khouzame
v All Seasons Air Pty Ltd
[2015] FCAFC 28
Full Court of the Federal Court of Australia
Robertson, Wigney & Gleeson JJ
Bankruptcy – respondent was subcontractor
retained by appellant – payment dispute arose – adjudication carried out
pursuant to Building and Construction
Industry Security of Payment Act 1999 (NSW) – adjudication concluded
respondent entitled to payment – adjudication certificate issued – Local Court entered
judgment for respondent – bankruptcy notice issued on application of respondent
– primary judge dismissed application to set aside bankruptcy notice – primary
judge found respondent’s failure to file affidavit at time of seeking entry of
judgment as required by s25 did not rise as high as abuse of process for
bankruptcy law purposes – statutory construction - held: adjudication
certificate only became enforceable as judgment for debt when it may be filed and it cannot be filed unless accompanied by affidavit specified in s
25(2) – appeal allowed – bankruptcy notice set aside.
Khouzame
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BHP
Billiton Ltd v Dunning
[2015] NSWCA 42
Court of Appeal of New South Wales
Basten, McFarlane & Meagher JJA
Workers compensation - worker suffering
from mesothelioma claimed illness caused by inhalation of asbestos dust and
fibre in course of employment with BHP - worker claimed BHP was negligent and
breached its statutory duties - Tribunal found in worker’s favour - s3B(1)(b) Civil Liability Act 2002 (NSW) - held:
primary judge did not err in finding BHP breached duty of care because it did
not take available practical alternative measures which would have reduced
worker’s exposure to asbestos - no error in admission of former employee’s
evidence, in finding worker exposed to asbestos dust and fibre during course of
employment or in findings concerning available practical alternative measures -
appeal dismissed.
BHP Billiton Ltd
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Nazero
Group Pty Ltd v Top Quality Construction Pty Ltd [2015] NSWSC 232
Supreme Court of New South Wales
Hammerschlag J
Security of payments - plaintiff and
first defendant entered agreement under which first defendant would do formwork
and concreting for plaintiff - payment dispute arose - adjudicator made
determination in first defendant’s favour - plaintiff sought to quash
adjudication - first defendant sought order requiring plaintiff to pay unpaid
portion of adjudicated amount as security into Court pending final
determination of proceedings - s25(4)(b) Building
and Construction Industry Security of Payment Act 1999 (NSW) required
payment of such amount into Court pending determination of proceedings to set
aside a judgment based on adjudication, however in this case first defendant
had not filed adjudication as judgment for a debt - exercise of discretion in
particular circumstances of case - s25 held: policy of not served by removing first
defendant’s protection pending determination of plaintiff’s challenge even
though s25(4)(b) did not apply in terms - manifestly unfair use of Court’s
process to permit plaintiff to mount its challenge without having to pay money into Court - proceedings stayed unless
plaintiff paid unpaid portion of amount into Court.
Nazero
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Secure
Funding Pty Ltd v Stark;; Secure Funding Pty Ltd v Conway [2015] NSWSC 223
Supreme Court of New South Wales
McCallum J
Default judgment - appeals against
primary judge’s decision to set aside default judgments for possession of
properties in separate proceedings - defendants also sought leave to amend
defence - whether arguable defence on grounds of unconscionable conduct -
ss12CB, 12CC, 12GM Australian Securities
and Investments Commission Act 2001 (Cth) - s237 Australian Consumer Law - held: defences raised were reasonably
arguable - no error in concluding default judgments should be set aside despite
the procedural history - proposed amendments allowed - appeals dismissed.
Secure
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Barry
v Queensland Building and Construction Commission [2015] QSC 50
Supreme Court of Queensland
Flanagan J
Building and construction – applicants
sought declaration that Direction to Rectify and/or Complete given by
Commission on 22/8/14 pursuant to Queensland Building Construction Commission
Act 1991 (Qld) was void – applicants contended direction was given out of
time – direction required to be given within 6 years and 3 months after completed
- time limit for giving directions – s72(8) – determination of what constituted
the building work to which the direction
relates - held: the building work to
which the direction relates was completed on issue of final certificate on
or about 26/8/08 – direction given by Commission was within time for purposes
of s72(8) – declaratory relief refused – application dismissed.
Barry
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Avopiling
(WA) Pty Ltd v Central Systems Pty Ltd
[2015] WASC 82
Supreme Court of Western Australia
Allanson J
Contract - parties disputed amounts
owing under construction contract - plaintiff issued writ - in exchange of
phone text messages, defendant offered and plaintiff accepted an amount ’in
full and final settlement’ - whether parties formed enforceable agreement to
settle dispute which included settlement foreshadowed counterclaim by defendant
- held: parties demonstrated intention to make legally binding agreement -
agreement in full and final settlement of dispute - declarations made.
Avopiling (WA) Pty Ltd
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