Denis McFadden v Daniel John Turnbull [2011] NSWSC 1294
FACTS
In 2009, Hickory Hill Pty Ltd and Denis McFadden entered into a tripartite building contract with Daniel John Turnbull to build a new home on the property of Hickory Hill.
The registered proprietor of the property is Hickory Hill, which is a trustee of a family trust. Mr McFadden is associated with this family trust, as well as occasionally residing in a farmhouse located on the Hickory Hill property.
Mr Turnbull made an application under the Building and Construction Industry Security of Payment Act 1999 (NSW). This resulted in a determination that Mr Turnbull was owed an amount of $222,619.35, because the adjudicator determined not to apply s 7(2)(b) of the Act which operates to exclude residential building work where “the party for whom the work is carried out resides in or proposes to reside in”.
ISSUE
Does s 7(2)(b) apply to exclude tripartite contracts where only one party proposes to reside in the premises?
FINDING
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