Abacus v Davenport & Ors [2003] NSWSC 1027

Abacus v Davenport & Ors [2003] NSWSC 1027

No jurisdictional error occurred because the adjudicator was entitled—and required—to make his own decision regarding variations and delay costs under the terms of the contract and the Act, and was not bound by the architect's certificate. Any errors committed were not jurisdictional and do not render the determination susceptible to prerogative relief.

Parties
Plaintiff: Abacus Funds Management Limited; First Defendant: Phillip Davenport; Second Defendant: Renascent Interiors & Refurbishers Pty Ltd; Third Defendant: Adjudicate Today Pty Ltd
Jurisdiction
Australia
Judgment Date
14 November 2003
Procedural Posture
Originating Summons / Final Judgment
Outcome
Summons dismissed. Plaintiff to pay second defendant's costs.
Legal Topics
Prerogative Relief, Adjudicator Determination, Jurisdictional Error
Administrative Law Construction Law Prerogative Relief Adjudicator Determination Jurisdictional Error

Case Brief

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Parties

Abacus Funds Management Limited

Plaintiff

Phillip Davenport

First Defendant

Renascent Interiors & Refurbishers Pty Ltd

Second Defendant

Adjudicate Today Pty Ltd

Third Defendant

Procedural Posture

Originating Summons / Final Judgment

Legal Issues

  1. 1 Whether prerogative relief lies against an adjudicator's determination under the Building & Construction Industry Security of Payment Act 1999
  2. 2 What grounds enable the granting of such relief (jurisdictional error vs errors of law on the face of the record)
  3. 3 Whether the adjudicator committed jurisdictional error in determining progress and delay claims contrary to the contract

Ratio Decidendi

No jurisdictional error occurred because the adjudicator was entitled—and required—to make his own decision regarding variations and delay costs under the terms of the contract and the Act, and was not bound by the architect's certificate. Any errors committed were not jurisdictional and do not render the determination susceptible to prerogative relief.

Court Disposition

Summons dismissed. Plaintiff to pay second defendant's costs.

Orders

  • Discharge order 1 made by Gzell J on 23 October 2003.
  • Summons dismissed.