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VCON P/L (ACN 054 559 429) v Oliver Hume Property Funds (Royal Parade) Parkville P/L (ACN 168 808 857) & O'Brien, John (in his capacity as adjudicator appointed under s 20(1) of the Building and Construction Industry Security of Payment Act 2002 (Vic))
BUILDING CONTRACTS - Trial - Building and Construction Industry Security of Payment Act 2002 (Vic) - Adjudication conducted under Part 3 Division 2 of the Act - Whether properly characterised, the payment claim is for contractual entitlements or is an attempt to recoup liquidated damages - Whether First Adjudication Determination created an issue estoppel that precluded the first defendant from relying on the earlier deductions of liquidated damages - Whether drawing down of two bank guarantees reduced the amount of the progress payment to which the plaintiff was entitled - Whether the first defendant's contractual entitlement to enforce the bank guarantees operated to exclude, modify or restrict the operation of the Act in a manner prohibited by s 48 of the Act - Whether the claim is for an excluded amount - Building and Construction Industry Security of Payment Act 2002 (Vic) ss 10, 10B, 14(3), 15(2), 21, 23, 47 and 48 - Seabay Properties Pty Ltd v Galvin Constructions Pty Ltd  VSC 183, applied - Shape Australia Pty Ltd v Nuance Group (Aust) Pty Ltd  VSC 808, applied - Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190, applied - Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464, applied - Fabtech v Laing O'Rourke Australia Construction Pty Ltd  FCA 1371, applied.