MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147

MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147

The adjudicator did not decide the I/O Points claim on an unargued basis, because it was open to her to construe Thales's Payment Claim and Adjudication Application as advancing a claim under cl 3.7 of the Specification as well as under cl 57 of the Contract, and SJV recognised and addressed that basis in its Adjudication Response. The adjudicator also considered SJV's arguments about whether Thales carried out the work, the challenged modification claims, and the claimed set-off; any errors in those evaluations were within jurisdiction and did not establish jurisdictional error or a material denial of procedural fairness.

Jurisdiction
Australia
Judgment Date
27 August 2020
Procedural Posture
Challenge to Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment
Outcome
Challenge to adjudication determination fails.
Legal Topics
['security of Payment Adjudication' 'jurisdictional Error' 'procedural Fairness' 'natural Justice' 'mandatory Considerations' 'payment Claims and Payment Schedules' 'contract Modifications' 'set Off']
['building and Construction' 'equity Technology and Construction List' 'administrative Law'] ['security of Payment Adjudication' 'jurisdictional Error' 'procedural Fairness' 'natural Justice' 'mandatory Considerations' 'payment Claims and Payment Schedules' 'contract Modifications' 'set Off']

Case Brief

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Procedural Posture

Challenge to Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the adjudicator denied procedural fairness by deciding the I/O Points claim on a basis not advanced by either party.' "Whether the adjudicator failed to consider SJV's argument that Thales did not carry out certain I/O Points work and thereby failed to consider mandatory matters under s 22(2) of the Act." 'Whether the adjudicator failed to come to a view or consider the true merits of three modification claims.' "Whether the adjudicator failed to decide whether SJV's claimed deduction or set-off for costs of providing power to the Electronic Ticketing System had been made out."]

Ratio Decidendi

The adjudicator did not decide the I/O Points claim on an unargued basis, because it was open to her to construe Thales's Payment Claim and Adjudication Application as advancing a claim under cl 3.7 of the Specification as well as under cl 57 of the Contract, and SJV recognised and addressed that basis in its Adjudication Response. The adjudicator also considered SJV's arguments about whether Thales carried out the work, the challenged modification claims, and the claimed set-off; any errors in those evaluations were within jurisdiction and did not establish jurisdictional error or a material denial of procedural fairness.

Court Disposition

Challenge to adjudication determination fails.

Orders

  • ['The parties should bring in short minutes to give effect to these reasons.']