David Hurst Constructions Pty Ltd v Helen Durham [2008] NSWSC 318

David Hurst Constructions Pty Ltd v Helen Durham [2008] NSWSC 318

The summons was dismissed because none of the builder's challenges established an error capable of invalidating the adjudication determination. The adjudicator dealt with the disputes before her, considered relevant contractual provisions and permissible material, did not breach procedural fairness, did not act contrary to s 20(2B), and any alleged misunderstanding of the contract or s 22(2) issue did not amount to a Brodyn invalidating error. Section 21(4) was discretionary and did not become a mandatory precondition to validity, and the Act did not impose a presumption in favour of the claimant or preclude the adjudicator from evaluating whether the builder's material justified the...

Jurisdiction
Australia
Judgment Date
26 February 2008
Procedural Posture
Proceeding Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Principal Judgment on Summons
Outcome
Summons dismissed; plaintiff ordered to pay the second and third defendants' costs; indemnity costs refused.
Legal Topics
['adjudication Determination' 'jurisdictional Error' 'procedural Fairness' 'payment Schedule' 'adjudication Response' 'liquidated Damages' 'onus of Proof' 'costs']
['building and Construction Law' 'security of Payment' 'administrative Law'] ['adjudication Determination' 'jurisdictional Error' 'procedural Fairness' 'payment Schedule' 'adjudication Response' 'liquidated Damages' 'onus of Proof' 'costs']

Case Brief

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Procedural Posture

Proceeding Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the adjudicator denied procedural fairness by determining matters on a basis for which neither party had contended.' 'Whether the adjudicator considered material in breach of s 20(2B) of the Building and Construction Industry Security of Payment Act 1999.' 'Whether the adjudicator failed to comply with s 22(2) of the Act by failing to have regard to, or by misunderstanding, provisions of the construction contract.' 'Whether s 21(4) of the Act imposed a mandatory requirement on the adjudicator to request further material, call a conference or inspect matters if unable to determine an issue on the material before her.' 'Whether the adjudicator wrongly imposed an evidentiary onus on the builder or failed to apply a statutory presumption in favour of the claimant.' 'Whether any established error was a Brodyn error invalidating the adjudication determination.' 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The summons was dismissed because none of the builder's challenges established an error capable of invalidating the adjudication determination. The adjudicator dealt with the disputes before her, considered relevant contractual provisions and permissible material, did not breach procedural fairness, did not act contrary to s 20(2B), and any alleged misunderstanding of the contract or s 22(2) issue did not amount to a Brodyn invalidating error. Section 21(4) was discretionary and did not become a mandatory precondition to validity, and the Act did not impose a presumption in favour of the claimant or preclude the adjudicator from evaluating whether the builder's material justified the...

Court Disposition

Summons dismissed; plaintiff ordered to pay the second and third defendants' costs; indemnity costs refused.

Orders

  • ['Order that the summons be dismissed.' "Order the plaintiff to pay the second and third defendant's costs." 'Order that the exhibits remain with the papers for 28 days and that thereafter they be held or disposed of in accordance with the rules.']