Musico & Ors v Davenport & Ors [2003] NSWSC 977

Musico & Ors v Davenport & Ors [2003] NSWSC 977

The determination of the adjudicator under s 22 of the Building and Construction Industry Security of Payment Act 1999 is susceptible to judicial review for jurisdictional error or denial of natural justice. Mr Davenport's determination was vitiated by jurisdictional error of law and denial of natural justice, as he misapplied the contractual provisions and determined matters not advanced by the parties without giving them notice. Relief is not precluded by discretionary considerations; thus, the determination is quashed.

Parties
Plaintiffs: Joseph Musico (aka Giuseppe Musico), Rosemary Musico, Luigi Genua and Rose Genua; Defendant 1: Philip Davenport; Defendant 2: Grosvenor Constructions (NSW) Pty Ltd [Administrators appointed]
Jurisdiction
Australia
Judgment Date
31 October 2003
Procedural Posture
Judicial Review / Final Judgment
Outcome
adjudicator's determination quashed
Legal Topics
Judicial Review of Adjudicator's Determination, Building and Construction Industry Security of Payment Act 1999, Jurisdictional Error, Denial of Natural Justice
Administrative Law Construction Law Judicial Review of Adjudicator's Determination Building and Construction Industry Security of Payment Act 1999 Jurisdictional Error Denial of Natural Justice

Case Brief

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Parties

Joseph Musico (aka Giuseppe Musico), Rosemary Musico, Luigi Genua and Rose Genua

Plaintiffs

Philip Davenport

Defendant 1

Grosvenor Constructions (NSW) Pty Ltd [Administrators appointed]

Defendant 2

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Is the determination of an adjudicator under the Building and Construction Industry Security of Payment Act 1999 susceptible to judicial review?
  2. 2 On what grounds may judicial review be available?
  3. 3 Were any reviewable errors, jurisdictional errors, or denial of natural justice made out in this case?

Ratio Decidendi

The determination of the adjudicator under s 22 of the Building and Construction Industry Security of Payment Act 1999 is susceptible to judicial review for jurisdictional error or denial of natural justice. Mr Davenport's determination was vitiated by jurisdictional error of law and denial of natural justice, as he misapplied the contractual provisions and determined matters not advanced by the parties without giving them notice. Relief is not precluded by discretionary considerations; thus, the determination is quashed.

Court Disposition

adjudicator's determination quashed

Orders

  • The determination of the first defendant made on 18 July 2003 on adjudication application No. 2003 ADJT082, pursuant to the Building and Construction Industry Security of Payment Act 1999, is quashed.