12 Apr 2017

Fitz Jersey Pty Ltd V Atlas Construction

Julie Wright

The Court of Appeal handed down its decision in Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53 on 23 March 2017.

Ian Roberts SC and Julie Wright appeared for the successful respondent. At first instance McDougall J exercised his discretion to dismiss an urgent application for an injunction and the mandatory repayment of an amount recovered by the contractor by way of garnishee order in circumstances where the principal had taken no steps to protect its own interests. In the Court of Appeal the appellant argued two main points:

1. that s25 of the Building and Construction Security of Payment Act provides an entitlement to a statutory stay of a judgment obtained following an adjudication determination; and

1. that a judgment creditor in an ex parte application to enforce a judgment (in this case an application to the Registrar for a garnishee order) owed a duty of candour to disclose that the judgment debtor had commenced proceedings to quash the determination on which the judgment was based, although it had taken no step to restrain the enforcement of the adjudication determination.
In dismissing the appeal, the Court of Appeal unanimously rejected both the proposition that s.25 gave rise to any such entitlement and that there was such a duty of candour.

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