Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWSC 239

Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWSC 239

Jurisdictional error was found in the adjudicator's determinations where, in several discrete items, the adjudicator failed to address the merits of the claims or to consider all submissions duly made by the plaintiff in support of its payment schedule or response, contrary to the requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW). Such failures are essential breaches and result in the invalidity of the affected parts of the determination. Under s 32A of the Act, only affected parts are to be set aside, while unaffected parts are to be confirmed.

Jurisdiction
Australia
Judgment Date
20 March 2023
Procedural Posture
Principal Judgment / Judgment After Full Hearing
Outcome
Jurisdictional error found in respect of parts of both adjudication determinations. Relief not immediately granted pending submissions on form of orders. Directions given for parties to confer and matter listed for mention on 23 March 2023.
Legal Topics
['security of Payment' 'jurisdictional Error' 'adjudication Determination' 'procedural Fairness' 'natural Justice']
['building and Construction' 'civil Procedure'] ['security of Payment' 'jurisdictional Error' 'adjudication Determination' 'procedural Fairness' 'natural Justice']

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Procedural Posture

Principal Judgment / Judgment After Full Hearing

Legal Issues

  1. 1 ['Whether the adjudication determinations under the Building and Construction Industry Security of Payment Act 1999 (NSW) are affected by jurisdictional error' 'Whether the adjudicator failed to determine the merits of payment claims' 'Whether the adjudicator failed to consider all submissions duly made by the parties' 'Whether there was a substantial denial of procedural fairness or natural justice' 'Appropriate relief under s 32A of the Act in the event of jurisdictional error']

Ratio Decidendi

Jurisdictional error was found in the adjudicator's determinations where, in several discrete items, the adjudicator failed to address the merits of the claims or to consider all submissions duly made by the plaintiff in support of its payment schedule or response, contrary to the requirements of the Building and Construction Industry Security of Payment Act 1999 (NSW). Such failures are essential breaches and result in the invalidity of the affected parts of the determination. Under s 32A of the Act, only affected parts are to be set aside, while unaffected parts are to be confirmed.

Court Disposition

Jurisdictional error found in respect of parts of both adjudication determinations. Relief not immediately granted pending submissions on form of orders. Directions given for parties to confer and matter listed for mention on 23 March 2023.

Orders

  • []