Machkevitch v Andrew Building Constructions

Machkevitch v Andrew Building Constructions [20120] NSWSC 546.

FACTS

In March 2010 the Defendant (Andrew Building Constructions) entered into a written contract and Bnus deed with 873 NSHR Investments Pty Ltd (the proprietor). The Builder took a claim to adjudication under the Building and Construction Industry Security of Payment Act 1999 (the Act) and a determination was made in the Builder’s favour. The proprietor then went into liquidation. The Builder now claims that it made a “construction contract” with Mr Machkevitch (the Plaintiff) where the Plaintiff would pay in the event the Company did not. The Plaintiff seeks to restrain the prosecution of the payment claim served on him and associated declaratory relief.

ISSUES

1. Whether a vertical “arrangement” amounted to a construction contract for the purposes of the Act?
2. Whether the builder is estopped, because of the first adjudication, from pressing its claim under the alleged construction contract?
3. Whether the builders attempts to press its payment claim against Mr Machkevitch is an abuse of the processes of the Act?

FINDING