Recent Cases

McDonald v MAK Constructions and Building Services Pty Ltd [2024] NSWCA 63 (21 March 2024) (Payne and Adamson JJA, Griffiths AJA)


Catchwords:


CIVIL PROCEDURE — Stay of proceedings — whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act) — operation and effect of s 32 of the SOP Act — whether the home owner’s proceedings are properly characterised as a “cross-claim” for the purposes of Pt 3 of the SOP Act — where the primary judge failed to consider the strength of the home owner’s case — where the builder has delayed in enforcing the judgment debt

BUILDING AND CONSTRUCTION — Contract — Damages — need to reconcile the policy of the SOP Act that a builder should receive progress payments promptly with the preservation of common law rights in s 32 of that Act