Cornerstone Danks Street v Parkview Constructions [2014] NSWSC 866

Cornerstone Danks Street v Parkview Constructions [2014] NSWSC 866

The adjudicator had not completed his statutory task by 13 May 2014 because item 25, variation V57 and shopfront deletions had not been determined. The adjudicated amount could only be reached after those remaining matters were dealt with and Annexure 1 was completed after 13 May 2014. Accordingly, the adjudicator failed to determine the application within the time allowed by s 21(3), Parkview was entitled to withdraw the application under s 26 on 14 May 2014, and the adjudicator's power to determine the application was then revoked. The purported determination was therefore void.

Jurisdiction
Australia
Judgment Date
19 June 2014
Procedural Posture
Application for Declaration That Adjudicator's Determination Is Void and Ancillary Injunctive Relief / Principal Judgment
Outcome
Plaintiffs succeeded. The adjudicator's determination was declared void, ancillary injunctive relief was granted, Parkview was ordered to pay the plaintiffs' costs, and indemnity costs were refused.
Legal Topics
['adjudication Determinations' 'building and Construction Industry Security of Payment Act 1999 (nsw)' "time for Adjudicator's Determination" 'withdrawal of Adjudication Application' 'indemnity Costs']
['building and Construction' 'civil Procedure' 'costs'] ['adjudication Determinations' 'building and Construction Industry Security of Payment Act 1999 (nsw)' "time for Adjudicator's Determination" 'withdrawal of Adjudication Application' 'indemnity Costs']

Case Brief

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Procedural Posture

Application for Declaration That Adjudicator's Determination Is Void and Ancillary Injunctive Relief / Principal Judgment

Legal Issues

  1. 1 ['Whether the adjudicator complied with the statutory obligation imposed by s 21(3) of the Building and Construction Industry Security of Payment Act 1999 (NSW) to determine the application by 13 May 2014.' 'Whether the adjudicator had power to make or finalise the determination after Parkview withdrew its adjudication application under s 26 of the Act.' 'Whether the adjudicator turned his mind in good faith to the statutory task entrusted to him.' 'Whether natural justice was denied.' 'Whether indemnity costs should be ordered against Parkview.']

Ratio Decidendi

The adjudicator had not completed his statutory task by 13 May 2014 because item 25, variation V57 and shopfront deletions had not been determined. The adjudicated amount could only be reached after those remaining matters were dealt with and Annexure 1 was completed after 13 May 2014. Accordingly, the adjudicator failed to determine the application within the time allowed by s 21(3), Parkview was entitled to withdraw the application under s 26 on 14 May 2014, and the adjudicator's power to determine the application was then revoked. The purported determination was therefore void.

Court Disposition

Plaintiffs succeeded. The adjudicator's determination was declared void, ancillary injunctive relief was granted, Parkview was ordered to pay the plaintiffs' costs, and indemnity costs were refused.

Orders

  • ['Declaration in terms of prayer 1 of the summons filed on 10 June 2014.' 'Orders on a permanent basis in terms of prayers 3 and 4.' 'Declaration in terms of prayer 5.' "The first defendant is to pay the plaintiff's costs." 'The sum of $1,492,034.68 paid into court by the second plaintiff on about 12 June 2014 is to...