Ghafoor v Ryte Homes Pty Ltd [2024] NSWSC 370

Ghafoor v Ryte Homes Pty Ltd [2024] NSWSC 370

There was no construction contract between the plaintiffs and Ryte Homes Pty Ltd because the proposed contract did not come into effect until signed by all persons named as Owner and the Builder, and neither the contract nor the tender was signed by two of the owners. The Court also rejected evidence of any separate agreement to pay for tender preparation or any supervision of demolition work. Consequently, no contract or arrangement existed by which Ryte Homes Pty Ltd agreed to perform construction work or supply related goods and services for the plaintiffs, so the adjudicator had no jurisdiction under the Act to adjudicate the payment claim and the determination was void.

Jurisdiction
Australia
Judgment Date
11 April 2024
Procedural Posture
Application to Have Adjudication Determination Declared Void / Principal Judgment
Outcome
Application granted; adjudication determination declared void and ancillary orders made against the first defendant.
Legal Topics
['security of Payment Adjudication' 'construction Contract' 'contract Formation' 'incompleteness' 'executed Contracts']
['building and Construction' 'contracts'] ['security of Payment Adjudication' 'construction Contract' 'contract Formation' 'incompleteness' 'executed Contracts']

Case Brief

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Procedural Posture

Application to Have Adjudication Determination Declared Void / Principal Judgment

Legal Issues

  1. 1 ['Whether the parties had entered a construction contract as defined in s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the HIA NSW Residential Building Contract or tender was signed and agreed to by all essential parties.' 'Whether there was any other contract or arrangement under which Ryte Homes Pty Ltd undertook to carry out construction work or supply related goods and services for the plaintiffs.' 'Whether the payment claim was served on the plaintiffs where it was not served on all of them.']

Ratio Decidendi

There was no construction contract between the plaintiffs and Ryte Homes Pty Ltd because the proposed contract did not come into effect until signed by all persons named as Owner and the Builder, and neither the contract nor the tender was signed by two of the owners. The Court also rejected evidence of any separate agreement to pay for tender preparation or any supervision of demolition work. Consequently, no contract or arrangement existed by which Ryte Homes Pty Ltd agreed to perform construction work or supply related goods and services for the plaintiffs, so the adjudicator had no jurisdiction under the Act to adjudicate the payment claim and the determination was void.

Court Disposition

Application granted; adjudication determination declared void and ancillary orders made against the first defendant.

Orders

  • ['Declare that the determination of the second defendant issued on 28 November 2023 in respect of Adjudication Application number ABCDRS NSW 561 in favour of the first defendant against the plaintiffs in the amount of $39,725 (the Determination) is void.' 'Order that the first defendant be permanently restrained...