Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd

(2005) 62 NSWLR 385; [2005] NSWCA 49

NSW Court of Appeal

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Interrogate

Catchwords

1. Building and Construction
2. › Security of payment legislation
3. › Statutory adjudication
4. › Concurrent pursuit of statutory and common law remedies
5. › Whether builder entitled to pursue both simultaneously
6. › Building and Construction Industry Security of Payment Act 1999 (NSW), ss 3, 13, 32
1. Practice and Procedure
2. › Injunctions
3. › Anti-suit injunctions
4. › Whether concurrent pursuit of statutory and common law remedies vexatious or oppressive
5. › Whether statutory proceedings frustrate court proceedings
6. › District Court Act 1973 (NSW), s 46
1. Practice and Procedure
2. › Election
3. › Whether commencement of court proceedings constitutes election precluding statutory remedies
4. › Whether statutory and common law remedies are alternative and inconsistent

Quick Take

A builder may concurrently pursue statutory adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) and common law proceedings in court. The statutory remedies are interim and supplementary, not alternative to common law rights, so there is no basis for election or for an anti-suit injunction on grounds of vexation or oppression. A possible exception exists where statutory proceedings are commenced close to trial and would interfere with the fair conduct of court proceedings.