Accrete Constructions v Kinsley Constructions [2005] NSWLC 14

Accrete Constructions v Kinsley Constructions [2005] NSWLC 14

The motion failed because the adjudicator was validly appointed under s.18, the absence of regulations prescribing qualifications did not make adjudicators ineligible, and she had power to order adjudication fees. The applicant did not prove that the excavation works were a collateral contract rather than a variation, and in any event the adjudicator was entitled to determine the progress payment dispute arising under a construction contract within the Act. The determination was not a rubber-stamp: it showed consideration of the material and the merits, and the respondent before the adjudicator had not put relevant material contesting the claimant's rates and quantities.

Jurisdiction
Australia
Judgment Date
10 February 2006
Procedural Posture
Civil Motion to Set Aside a Judgment Entered Pursuant to an Adjudication Under the Building and Construction Industry Security of Payment Act 1999 / Notice of Motion After an Adjudication Certificate Was Filed in the Local Court as a Judgment Debt
Outcome
Motion dismissed; applicant ordered to pay respondent's costs of disposal of the motion in a sum agreed or assessed.
Legal Topics
['security of Payment Adjudication' 'setting Aside Judgment for Irregularity' 'eligibility and Appointment of Adjudicators' "scope of Adjudicator's Authority" 'valuation of Progress Payment Claims']
['civil Procedure' 'building and Construction' 'statutory Interpretation'] ['security of Payment Adjudication' 'setting Aside Judgment for Irregularity' 'eligibility and Appointment of Adjudicators' "scope of Adjudicator's Authority" 'valuation of Progress Payment Claims']

Case Brief

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Procedural Posture

Civil Motion to Set Aside a Judgment Entered Pursuant to an Adjudication Under the Building and Construction Industry Security of Payment Act 1999 / Notice of Motion After an Adjudication Certificate Was Filed in the Local Court as a Judgment Debt

Legal Issues

  1. 1 ['Whether the judgment entered under s.25 of the Building and Construction Industry Security of Payment Act 1999 was entered irregularly and should be set aside.' 'Whether s.18 of the Building and Construction Industry Security of Payment Act 1999 required qualifications, expertise and experience of adjudicators to be prescribed by regulation before any adjudicator could be eligible.' 'Whether the adjudicator exceeded her authority by dealing with a variation or collateral contract rather than the identified construction contract.' "Whether the adjudicator failed properly to exercise her function by accepting the claimant's quantities and rates without independently assessing the merits of the payment claim." 'Whether the adjudicator had power to order payment of adjudication fees.']

Ratio Decidendi

The motion failed because the adjudicator was validly appointed under s.18, the absence of regulations prescribing qualifications did not make adjudicators ineligible, and she had power to order adjudication fees. The applicant did not prove that the excavation works were a collateral contract rather than a variation, and in any event the adjudicator was entitled to determine the progress payment dispute arising under a construction contract within the Act. The determination was not a rubber-stamp: it showed consideration of the material and the merits, and the respondent before the adjudicator had not put relevant material contesting the claimant's rates and quantities.

Court Disposition

Motion dismissed; applicant ordered to pay respondent's costs of disposal of the motion in a sum agreed or assessed.

Orders

  • ['The motion is dismissed.' "The applicant is to pay the respondent's costs of disposal of the motion in a sum agreed or assessed."]