Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 27:

1. BELL CJ: I agree with McHugh JA.

2. McHUGH JA: The facts of this application for leave to appeal are singular. The application concerns a stay of execution granted by the primary judge, Waugh SC DCJ, of a money judgment in favour of the applicant (the Builder) arising by reason of the filing of an adjudication certificate pursuant to s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act).

3. It is common ground that a s 25 judgment does not finally determine the parties' rights. The primary judge stayed the judgment pending determination of the parties' rights in proceedings commenced in the District Court of New South Wales by the respondent, Mr Nicholas McMenemy, and his wife, Ms Emily Webster, against the Builder (the Other proceedings). Those proceedings raise claims including for unconscionable conduct, duress and undue influence, and under the Contracts Review Act 1980 (NSW).

4. Some of the applicant's proposed Grounds of appeal raise questions of principle, or at least of importance beyond this case. Leave to appeal should be granted with respect to those Grounds, but the appeal should be dismissed.

The dispute

5. The respondent, Mr McMenemy, is a homeowner, who contracted with the Builder to renovate the family home in Mosman he co-owned with Ms Webster.

6. The contract price was $1,124,817.39, including GST. The contract was entered on or about 4 January 2023, using the Master Builders Association of NSW standard form Residential Building Contract, BC4, October 2021 (the Contract). It was common ground that the work undertaken was "residential building work" as defined in the Home Building Act 1989 (NSW), Sch 1, s 2. Clause 14 of the Contract made detailed provision for variations, including that if the Builder agreed to undertake a variation, the variation was to be detailed in writing and signed by Mr McMenemy and the Builder (par (d)(i)), and requiring the Builder to notify Mr McMenemy in writing of the value of the variation within a reasonable time of receiving instructions to execute a variation (par (e)).

7. On Mr McMenemy's case, the parties agreed that Mr McMenemy and Ms Webster would source and supply certain materials that were within the contracted works for the home, including fixtures and fittings. The Builder was then to reimburse Mr McMenemy and Ms Webster for amounts they had paid to third parties for those materials.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1970adf6dff2b8cc7d6d7bb1)

Disclaimer: Curated by HT Syndication.