Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208

Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208

The First Determination was void because the First Adjudicator did not determine the amount of the progress payment as required by s 22. A reference date had arisen on 25 August 2019 before Parrwood took the work out of Trinity's hands, so Trinity had a statutory right to make a payment claim and have it adjudicated. The First Adjudicator instead treated payment as suspended until the cl 39.6 mechanism operated and declined to determine the substantive issues concerning delay damages and liquidated damages. Trinity was not required to commence separate proceedings immediately and had not made an election; it could act on the basis that the First Determination had no legal effect and...

Jurisdiction
Australia
Judgment Date
11 March 2020
Procedural Posture
Equity Technology and Construction List Proceedings Concerning Adjudication Determinations Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons and Cross Summons
Outcome
Leave granted to file the Cross Summons; Parrwood's Summons dismissed; the First Determination declared null and void; money paid into Court ordered to be paid to Trinity; Parrwood ordered to pay Trinity's costs.
Legal Topics
['progress Payments' 'adjudication Determinations' 'jurisdictional Error' 'withdrawal and New Adjudication Applications Under S 26' 'supporting Statements Under S 13(8)' 'briginshaw Standard' 'late Cross Summons' 'election']
['building and Construction' 'evidence' 'practice and Procedure'] ['progress Payments' 'adjudication Determinations' 'jurisdictional Error' 'withdrawal and New Adjudication Applications Under S 26' 'supporting Statements Under S 13(8)' 'briginshaw Standard' 'late Cross Summons' 'election']

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Procedural Posture

Equity Technology and Construction List Proceedings Concerning Adjudication Determinations Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons and Cross Summons

Legal Issues

  1. 1 ['Whether the Court should give Trinity leave to file the Cross Summons filed on 2 March 2020.' 'Whether Trinity was precluded by delay or election from contending that the First Determination was void.' 'Whether the First Adjudicator committed jurisdictional error by failing to determine the amount of the progress payment under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether a contractual suspension following Parrwood taking the work out of Trinity's hands affected a right to a progress payment that had arisen before suspension." 'Whether Trinity was entitled under s 26 to withdraw the first adjudication application and make a new adjudication application.' 'Whether the Payment Claim was invalid because the supporting statement was knowingly false or misleading in a material particular contrary to s 13(8).']

Ratio Decidendi

The First Determination was void because the First Adjudicator did not determine the amount of the progress payment as required by s 22. A reference date had arisen on 25 August 2019 before Parrwood took the work out of Trinity's hands, so Trinity had a statutory right to make a payment claim and have it adjudicated. The First Adjudicator instead treated payment as suspended until the cl 39.6 mechanism operated and declined to determine the substantive issues concerning delay damages and liquidated damages. Trinity was not required to commence separate proceedings immediately and had not made an election; it could act on the basis that the First Determination had no legal effect and...

Court Disposition

Leave granted to file the Cross Summons; Parrwood's Summons dismissed; the First Determination declared null and void; money paid into Court ordered to be paid to Trinity; Parrwood ordered to pay Trinity's costs.

Orders

  • ['Give leave to the first defendant to file the Cross Summons filed on 2 March 2020.' 'The Summons is dismissed.' "Declare that the adjudication determination of John O'Brien dated 15 November 2019 purportedly made under the Building and Construction Industry Security of Payment Act 1999 (NSW) in respect of...