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1 Victoria Australia Adjudication Case Data Base by Date Construction Adjudication Cases pursuant to the Building and Construction Industry Security of Payment Act 2002 listed in reverse date order starting with the most recent. Last updated 5th May 2007.

Abigroup Contractors P/L v River Street Developments P/L [2006] VSC 425 BCISPA 2002 ss9,14,15,16. Payment claim ? Payment schedule ? Whether service of payment claim on agent of Principal satisfied requirements of s14(1. Procedure : Summary judgment application ? Whether real question to be tried. Habersberger.J Supreme Court of Victoria Melbourne 10th November 2006.

Abigroup Contractors P/L v River Street Developments P/L [2007] VCAT 1058 Victorian Civil and Administrative Tribunal Act 1998 – S.77 – Domestic Building Contracts Act 1995 – S.53(2)(bb) – whether Supreme Court more appropriate forum – jurisdiction – other factors including risk of conflicting decisions. Judge Bowman. 15th June 2007

AC Hall Airconditioning P/L v Schiavello (Vic) P/L [2008] VCC 1169 BCISPA 2002, s.16, 18 and 23 - was a valid election made under s.16? - Kell & Rigby Pty Ltd v Guardian International Properties Pty Ltd [2007] NSWSC 554 - JAR Developments Pty Ltd v Castlepex Pty Ltd [2007] NSWSC 737.Judge Shelton. 10th September 2008

ADH Plant Hire P/L v Construct Co P/L [2004] CI-04004203 Application for summary enforcement. Shelton J. County Court Victoria. Melbourne. 16th December 2004.

Age Old Builders v Arvanitis [2006] VCC 1827 Summary Judgment Application - BCISPA 2002, sections 4, 9, 11 and 16 - Nepean Engineering Pty Ltd v. Total Process Services Pty Ltd [2005] NSWCA 409 - Brookhollow Pty Ltd v R & R Consultants Pty Ltd [2006] NSWSC 1. Judge Shelton. 23rd June 2006

AMD Formwork P/L v Yarraman Construction Group P/L [2004] Adj.Soc. Application for summary enforcement. Shelton J. County Court Victoria. Melbourne. 3rd August 2004.

Aquatec-Maxcon P/L v Minson Nacap P/L [2004] VSCA 18 Standard form of contract - Construction of clauses 42 and 44 of A.S.4303-1995 considered - Entitlement of sub-contractor to obtain judgment for unpaid progress claims - Claim for summary judgment by sub-contractor in respect of unpaid progress claims after termination of contract. Court of Appeal at Melbourne: Supreme Court of Victoria before Winneke P : Buchanan JA : Eames JA. 5th March 2004.

Belmadar Constructions P/L v Environmental Solutions P/L [2005] VSC 24 : Application for summary enforcement. Byrne J. Commercial & Equity Div. Supreme Court of Victoria. Melbourne. 18th February 2005.

Blueview Constructions P/L v Vain Lodge Holdings P/L [2005] VCC 1325 Corporations ? external administration ? leave to proceed against Co. ? proposed proceeding by unsecured creditor in order to obtain recovery from debtor of Co. ? whether consistent with scheme of distribution of company assets. Building contract ? subcontractor progress payment claim ? contractor under external administration ? judgment against contractor sought to enable recovery from principal. Shelton J. Victoria. Melbourne. 11th November 2005.

Brady Constructions P/L v Dominion Lifestyle Tower Apartments P/L [2006] VCC 1830 Building and Construction Industry Security of Payment Act 2002, Sections 14, 15, 18, 25, 27 and 42 - Summary Judgment Application - Accord and satisfaction - Domestic Building Contracts Act 1995, Sections 54 and 57. Judge Shelton. 29th September 2006

Buxton Construction P/L v Golf Australia Holdings Ltd [2007] VSC 10 Meaning of mediated settlement agreement of progress payments and asserted LADs. Provision to pay outstanding progress payments. Cross assertion that what was outstanding was less LADS. Held : Settlement did not envisage set off for LADS. Outstanding progress payments due. Hargrave J : Supreme Court of Victoria. Melbourne. Commercial & Equity Division. Commercial List. 15th February 2007

Christos Charisiou Building Group P/L v Geopec P/L [2006] VCC 1831 Summary Judgment Application - Building and Construction Industry Security of Payment Act 2002 - S.14 and S.15. Judge Shelton. 15th December 2006

Concrete Panel Co Pty Ltd v Advanced Storage Systems [2004] CI-03-09126 Application for summary enforcement. Shelton J. County Court Victoria. Melbourne. 30 March 2004.

Contrax Plumbing Victoria P/L v Golf Club Properties Ltd [2006] VCC 237 Summary enforcement : Only to be refused if there is a real issue to be tried which in this case there was not. Shelton J. County Court. Victoria. Melbourne. 10th March 2006.

Cooper Morison Pty Ltd v Casa D'Abruzzo Club [2006] VCC 184 Summary judgment : Application for payment - no payment schedule issued. Defence of breach of contract not applicable. Application granted. Shelton J: County Court, Victoria at Melbourne Building Cases Division. 16th February 2006

Crown Joinery P/L v Lyleho P/L [2007] VSC 214 Winding up – Insolvency – Statutory demand – Demand varied by amount of offsetting claim – Debtor complied with demand as varied – Creditor not relying on statutory presumption of insolvency – Whether creditor has standing – Whether proceeding bound to fail – Whether abuse of process – Corporations Act 2001 s 459H, 459P. Notice to produce – Notice purports to require production of \"documents referred to in affidavits\" – Documents not referred to in affidavits – Whether notice \"fishing\" – Whether notice too wide and oppressive – Whether abuse of process - Supreme Court (General Civil Procedure) Rules 2005 r 29.10(2); Evidence Act 1958 s 58C. Maxwell P. 20th June 2007

Danidale P/L (t/as Bernie Cornfoot & Sons Earthmoving) v Abigroup Contractors P/L [2007] VSC 552 Costs – Whether plaintiff entitled to any costs of claim when it recovered judgment for less than it had been offered by defendant before proceeding commenced – Extent of power to “otherwise order” under r.26.08(3) – Whether defendant entitled to indemnity costs from date of any of three offers of compromise which exceeded amount recovered by plaintiff – Whether the rejections of the three offers of compromise were reasonable – Whether plaintiff entitled to costs on a higher basis in respect of that part of the counterclaim which the defendant withdrew prior to the hearing – Whether Court could determine argument that that part of the counterclaim could never have succeeded without a hearing on the merits – Whether defendant entitled to costs of the remainder of its counterclaim when it eventually only sought and recovered nominal damages – Whether there should be an order setting off the order for costs payable to the defendant against the judgment sum in favour of the plaintiff – Whether there should be a stay of execution on the judgment pending taxation of the costs orders – Supreme Court Act 1986, s.24 – Supreme Court (General and Civil Procedure) Rules 2005, rr.26.08(3), 63.02, 63.15, 63.16, 63.17, 63.55(1)(a), 66.16. Habersberger J. 21st December 2007

Danidale P/L v Abigroup Contractors P/L [2007] VSC 391 Lump sum contract entered into after parties negotiated on rates basis – Whether cost of excavation of rock included in the lump sum – Assessment of value of work if no agreement on rate – Two conflicting results of survey of volume of soil stripped – Whether parties bound by results of principal’s surveyor – Other factual issues. Habsberger J. 12th October 2007

Dellam P/L v. Poposki [2007] VCC 1679 Bills of exchange - Claim in respect of four dishonoured cheques - Cheques provided as progress payments pursuant to a domestic building project - Whether action should be stayed so that claim proceeds in the Victorian Civil & Administrative Tribunal - Section 57(2) Domestic Building Contracts Act 1995. Judge Anderson. 18th December 2007

Domaine Homes (Vic) P/L v RIA Building P/L [2005] VCC 111 Stay application pursuant to s.57(2) of the DBCA
1995 ? alternative claims for damages for breach of contract and under the BCISPA Act 2002. Shelton J. County Court Victoria. Melbourne. 15th February 2005.

Dura Constructions (Australia) P/L v SC Land Richmond P/L [2006] VSC 428 Building contract - owner purported to take over remaining works the subject of the contract - right of builder to be on land - appeal from decision of senior member of VCAT not to grant an interlocutory injunction. Interlocutory injunction - sought by builder until application for leave to appeal from decision of VCAT can be heard - Whether error of law on serious question to be tried or on \"balance of convenience\" - relief refused. HHJ Whelan. 23rd October 2006.

Glenrich Builders P/Ld v 1-5 Grantham Street P/L & 415 Brunswick Road P/L [2008] VCC 1170 Domestic Building Contracts Act 1995, s.57 - stay application - does Act apply to owner-developer? - alternative claims under contract and under the BCISPA 2002. Summary judgment application - general conditions of contract AS 2124-1992 - Clause 42.1 - Novawest Contracting Pty Ltd v Taras Nominees Pty Ltd [1998] VSC 205 - whether applicable where no payment certificate issued by Superintendent. BCISPA 2002, s.14 and 15 - whether payment schedule provided. Shelton J. 10th September 2008

Grantham Street 1-5 P/L v Glenrich Builders P/L [2008] VSCA 228 Stay - Whether appeal sufficiently arguable - Whether special or exceptional circumstances- Stay granted on terms. Security for costs - Uncertainty about appellants’ financial position - Conduct of appellants considered - Security ordered. Redlich JA & Hargrave AJA. 18th November 2008

Huggins v Fasham Johnson P/L [2004] VCAT 2274 Builder - identity.Registered domestic builder entering into agreement to supply kits and arranging for owners to enter into construction contract with regional builder to erect the kit items as a house designed by the registered builder; Whether registered builder `a builder' or `the builder' and responsible as such for the construction of the house; Effect of assurances given by builder's officers. M.F. Macnamara, Deputy President.Victoria : Melbourne. M.F.Macnamara. 23 November 2004

Kane Constructions P/L v Sopov [2005] VSC 237 Progress certificates - Claims for payment - Evidence in support of claims -- Whether material condition precedent to issue of a payment certificate - Validity of late progress claims & certificates - Assessment procedures -- Estoppel - Delay - EOT- Liquidated damages - superintendent's role- Undue influence - Suspension of works - retention moneys - Substantial breach -- Repudiation - Termination -- Quantum meruit : DBCA 1995 : TPA 1974. Warren Cj. Melbourne. Victoria. 30th June 2005.

Main Roads Construction P/L v Samary Enterprises P/L [2005] VSC 388 Standard Australia General Conditions of Contract AS 4000-1997 ? Claim by builder for payment on progress certificates ? Whether proprietor can raise cross-claim in answer ? Procedure ? Summary judgment application ? Whether question whether proprietor can raise cross-claim in answer to claim by builder for payment on progress certificates raises triable issue ? Supreme Court Rules, r.13.14.Habersberger J : Common Law Division. Melbourne : Supreme Court of Victoria. 28th September 2005.:

Main Roads Corporation P/L v Samary Enterprises P/L [2006] VSC 144 Claim by contractor for payment of progress certificates ? Cross-claim by principal ? Summary judgment application by plaintiff successful ? No payment by defendant? Receivers and managers appointed to plaintiff/judgment creditor ? Plaintiff/judgment creditor in administration and then liquidation ? Whether there was equitable set-off or statutory set-off ? Whether there should be stay of execution of the judgment.Habersberger J : Commercial & Equity Division. Melbourne : Supreme Court of Victoria. 12th April 2006.

Maric Painting Services P/L v J G King P/L [2006] VCC 1784 Contract - General principles. Series of painting contracts - Extras - Work and labour done - Defence and Counterclaim for defective workmanship. HHJ Dyett. County Court of Victoria. Melbourne. Business List. Commercial Division. 15th June 2006

Mirvac (Docklands) PL v Philp [2004] VSC 301 Construction Contract : Meaning of : Contract to purchase property subject to a development program held to be a contract of sale of land not a construction contract. Byrne J. Melbourne. 30th August 2004.

National Builders Group P/L v Vigilante [2007] VSC 339 Building Contracts - appeal from VCAT – whether Tribunal was correct in finding that builder was not entitled to the cost of a variation, on a proper construction of the building contract or on a proper construction of ss. 31 and 37 of the DBC Act 1995. Mandie J; Melbourne. 19th September 2007

Novawest Contracting P/L v. Indevelco P/L [2006] VCC 798 Failed attempt to establish that EOT\'s incorrectly awarded and that defendant entitled to deduct liquidated damages for late completion from sums held by the court in respect of non-payment of progress payments. Judge Stott ; County Court of Victoria at Melbourne. 22nd May 2006

Performance Builders (VIC) P/L v Southern Restaurants Vic P/L [2004] CI-04-01438 Application for summary enforcement granted. Attempt to show the claim was not a progress payment failed. Court unhappy about adjudicator giving affidavit to the effect that the claim was a progress payment and not a final account. Cohen J. County Court Victoria. Melbourne. 30th April 2004.

Presser v Ocean View Properties Pty Ltd [2006] VSC 143 Stay of action to Home Building Tribunal : dispute over defective floors in an appartment. Application for stay approved. Habsersberger J. Melbourne. 10th March 2006.

SC Land Richmond P/L v Dura (Australia) Constructions P/L (Domestic Building ) [2006] VCAT 2519 Application for discoveries following on from and consolidating two adjudications. Deputy President C. Aird. 8th December 2006

Shaw v Yarranova P/L (No 2) [2007] VSCA 48 COSTS ? Rule 26.12 ? Application for a special order for costs ? Whether offer to compromise appeal was certain ? Relevance of the merit of the appeal ? Consideration of Hazeldene?s ? Distinction between rules governing offers to compromise at trial and on appeal ? Application for special order for costs refused. Warren CJ, Eames and Neave JJA. Melbourne. 22nd March 2007

Shaw v Yarranova Pty Ltd [2006] VSC 45 Construction contract : Meaning of : Claimant bought a property under construction : he paid a deposit but refused to complete alleging property not built in conformity with contract. Held : He forfeited his deposit : He should have completed and then taken an action for breach of construction contract. Bell J. Melbourne. Common Law Division. 23rd February 2006.

Shaw v Yarranova Pty Ltd [2006] VSCA 291 Sale of apartment "off-the-plan" by way of a contract of sale ? Whether contract of sale covered by Domestic Building Contracts Act 1995 ? Whether a "Major Domestic Building Contract" Domestic Building Contracts Act 1995, ss 3, 4, 5, 6, & 42 ? Statutory interpretation ? Consideration of the position of the Act within legislative regime ? Appeal dismissed. Warren, C.J., Eames: Neave,JJ.A. Melbourne. 15th December 2006

Shelford Engineering & Construction P/L v Rescom Constructions P/L [2005] VCC 361 Application for summary enforcement. Adjudicator challenge - contract did not provide a nominating body - so first step was to seek agreement on appointment. This was not followed. Enforcement refused. Shelton J. County Court Victoria. Melbourne. 8th July 2005.

Siemens Ltd v Vaughan Constructions P/L [2006] VSC 452 Claim for injunction to restrain enforcement of guarantee given under s.25(1)(b) BCISPA 2002 ? Whether notice of dispute served on defendant commenced "other dispute resolution proceedings" under s.25(2) ? Effect of notice being expressed to be "without prejudice" to rights under the contract and at law. Supreme Court Victoria, Melbourne. Kaye J. 29th November 2006.

Sopov v Kane Constructions Pty Ltd [2007] VSCA 257 Repudiation – Building contract – Whether principal’s conduct evinced intention not to perform contract – Principal’s insistence upon untenable contractual position and commission of unjustifiable breaches – Message conveyed to contractor – Contract repudiated by principal – Whether contractor’s conduct disentitled it to accept repudiation. Maxwell P, Kellam JA and Whelan AJA. 22nd November 2007

Van Ek Contracting P/L v Roads Corporation [2007] VSC 336 Non-payment of adjudicated amount determined under BCISPA 2002 – Security given by defendant in accordance with s.25(4) of the Act - Whether contractual provision concerning mediation and arbitration meant that defendant had commenced a proceeding within the meaning of s.25(2) of the Act – Summary judgment application unsuccessful. Habersberger J. 12th September 2007

Winslow Constructors P/Lv Mt Holden Estates P/L [2004] VSC 38 Appeal from decision of Victorian Civil and Administrative Tribunal - Statutory Interpretation - Whether earthworks, road works, drainage, sewer and water reticulation construction fall under Domestic Building Contracts Act 1995, s.5 - Fair Trading Act 1999 - decision affirmed. Balmford J. 18th February 2004

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