32     Effect of Part on civil proceedings

(1)   Subject to section 34, nothing in this Part affects any right that a party to a construction contract:

(a)    may have under the contract, or

(b)   may have under Part 2 in respect of the contract, or

(c)    may have apart from this Act in respect of anything done or omitted to be done under the contract.

(2)   Nothing done under or for the purposes of this Part affects any civil proceedings arising under a construction contract, whether under this Part or otherwise, except as provided by subsection (3).

(3)   In any proceedings before a court or tribunal in relation to any matter arising under a construction contract, the court or tribunal:

(a)    must allow for any amount paid to a party to the contract under or for the purposes of this Part in any order or award it makes in those proceedings, and

(b)   may make such orders as it considers appropriate for the restitution of any amount so paid, and such other orders as it considers appropriate, having regard to its decision in those proceedings. 

Plaza West Pty Ltd v Simon's Earthworks (NSW) Pty Ltd Anor [2008] NSWCA 279 (31 October 2008): Allsop P, Giles JA, Hodgson JA
KEY ISSUES: judgment obtained under Act ;judgment debtor may obtain stay of the judgment or an injunction against enforcement of it in proceedings brought pursuant to s.32 of the Act

Pacific Islands Express Pty Ltd v Empire Building Development Pty Ltd [2008] NSWSC 576 (12 June 2008): Austin J
KEY ISSUES: effect of s.32 interaction with s.25(4)

Tooma v Eaton [2002] NSWSC 514 (11 June 2002): Master Macready
KEY ISSUE: whether absence of a payment schedule under s 14 of the Act meant that there was no genuine dispute to a statutory demand based on a payment claim made under s 13 of the Act

Beckhaus v Brewarrina Council [2002] NSWSC 960 (18 October 2002) : Macready AJ
KEY ISSUES: whether claim under the Act can be made at same time with progress claim under the contract in one document

Pasquale Lucchitti Trading as Palluc Enterprises and Ors v Tolco Pty Limited and Anor [2003] NSWSC 1070 (7 November 2003) : Bergin J

Max Cooper v Booth [2003] NSWSC 929 (14 November 2003) : Master Macready
KEY ISSUES: whether a contractual offsetting claim can be used to set aside a statutory demand based on adjudicator’s determination under the Act – whether adjudicator’s decision gave rise to res judicata

Multiplex Constructions Pty Ltd v Luikens and Anor [2003] NSWSC 1140 (4 December 2003) : Palmer J

Isis Projects Pty Limited v Clarence Street Limited [2004] NSWSC 222 (29 March 2004): Einstein J
KEY ISSUES: whether following amending legislation the Act requires the respondent upon receiving a payment claim to set out any objection it may have to the claim in a payment schedule – whether or not the claimant be in fact entitled to the progress payment – whether General Steel principles apply upon an application for summary judgment pursued by reference to the Act where the parties final rights are reserved

Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor. [2004] NSWCA 394 (3 November 2004): Mason P, Giles JA, Hodgson JA

Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2005] NSWCA 49 (3 March 2005) : Handley JA, Santow JA, Pearlman AJA
KEY ISSUES: whether concurrent pursuit of statutory and common law remedies permissible under statute – whether vexatious or oppressive

Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd & Anor [2005] NSWSC 362 (14 April 2005) : McDougall J
KEY ISSUES: whether adjudicator able to determine whether payment claims in adjudication application can be awarded