Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 401

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (No 2) [2023] NSWSC 401

Where jurisdictional error in an adjudication determination affects only discrete monetary components, the Court should, under s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW), sever and set aside only those components, confirm the unaffected balance, and similarly set aside fee apportionments relying on such error. Severance should not extend to parts of the written reasons, but only to the operative determinations specified by the Act.

Jurisdiction
Australia
Judgment Date
20 April 2023
Procedural Posture
Equity Proceedings (technology and Construction List) / Post Judgment—consequential Orders Following Earlier Findings of Jurisdictional Error in Adjudication Determinations
Outcome
Parts of both adjudication determinations affected by jurisdictional error set aside; unaffected parts confirmed under s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW).
Legal Topics
['adjudication' 'jurisdictional Error' 'partial Setting Aside of Determinations' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'statutory Construction Procedures']
['construction Law' 'equity'] ['adjudication' 'jurisdictional Error' 'partial Setting Aside of Determinations' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'statutory Construction Procedures']

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Procedural Posture

Equity Proceedings (technology and Construction List) / Post Judgment—consequential Orders Following Earlier Findings of Jurisdictional Error in Adjudication Determinations

Legal Issues

  1. 1 ['Whether parts of adjudication determinations can be severed and set aside under s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) where only parts are affected by jurisdictional error' 'How the Court should identify and approach the parts of determinations that are or are not affected by jurisdictional error under s 32A' 'Whether orders should be made including or excluding the reasons for determinations' "Whether adjudicator's fee determinations are affected by jurisdictional error"]

Ratio Decidendi

Where jurisdictional error in an adjudication determination affects only discrete monetary components, the Court should, under s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW), sever and set aside only those components, confirm the unaffected balance, and similarly set aside fee apportionments relying on such error. Severance should not extend to parts of the written reasons, but only to the operative determinations specified by the Act.

Court Disposition

Parts of both adjudication determinations affected by jurisdictional error set aside; unaffected parts confirmed under s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW).

Orders

  • ["For the York Street site determination, the total sum of $886,186.09 (comprising disputed amounts in items 4, 6, 8, 15, and variation 6) is severed and set aside from the adjudicated amount, with the remaining $1,070,649.27 (plus interest) confirmed; due date and interest rate confirmed; apportionment of...