TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72

TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72

Cenric's claim for payment for work done on the site to 19 March 2018 arose out of the same facts as the claims it advanced in the 2018 Proceedings, Cenric knew of the claim and raised it only as an abandoned set-off, and Cenric failed to prove any agreement or convention that the claim would be determined later outside those proceedings. It was therefore unreasonable for Cenric not to propound the claim in the 2018 Proceedings, giving rise to an Anshun estoppel. Service of the 10 December 2018 payment claim and the 1 March 2019 adjudication application based on it were an abuse of process, so Cenric was to be restrained from proceeding with that adjudication application.

Jurisdiction
Australia
Judgment Date
14 February 2020
Procedural Posture
Equity Technology and Construction List Proceeding Concerning a Payment Claim and Adjudication Applications Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing
Outcome
TWT succeeded; Cenric was restrained from proceeding with its 1 March 2019 adjudication application.
Legal Topics
['building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'adjudication Application' 'anshun Estoppel' 'abuse of Process' 'jurisdictional Error' 'natural Justice']
['building and Construction' 'equity' 'administrative Law'] ['building and Construction Industry Security of Payment Act 1999 (nsw)' 'payment Claim' 'adjudication Application' 'anshun Estoppel' 'abuse of Process' 'jurisdictional Error' 'natural Justice']

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Procedural Posture

Equity Technology and Construction List Proceeding Concerning a Payment Claim and Adjudication Applications Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether it was an abuse of the process of the Act for Cenric to make the 10 December 2018 payment claim by reason of an Anshun estoppel arising from Cenric's failure to propound in the 2018 Proceedings the claim for work done prior to its exclusion from the site on 19 March 2018." 'If there was no Anshun estoppel, whether the 22 February 2019 adjudication was amenable to challenge on the basis that, as a matter of objective fact, the 10 December 2018 payment claim related to work carried out within 12 months of service of the payment claim.']

Ratio Decidendi

Cenric's claim for payment for work done on the site to 19 March 2018 arose out of the same facts as the claims it advanced in the 2018 Proceedings, Cenric knew of the claim and raised it only as an abandoned set-off, and Cenric failed to prove any agreement or convention that the claim would be determined later outside those proceedings. It was therefore unreasonable for Cenric not to propound the claim in the 2018 Proceedings, giving rise to an Anshun estoppel. Service of the 10 December 2018 payment claim and the 1 March 2019 adjudication application based on it were an abuse of process, so Cenric was to be restrained from proceeding with that adjudication application.

Court Disposition

TWT succeeded; Cenric was restrained from proceeding with its 1 March 2019 adjudication application.

Orders

  • ['The defendant is to be restrained from proceeding with its 1 March 2019 adjudication application.' 'Counsel should bring in short minutes to give effect to the reasons.']