Acciona Infrastructure Australia Pty Ltd v Holcim (Australia) Pty Ltd [2020] NSWSC 1330

Acciona Infrastructure Australia Pty Ltd v Holcim (Australia) Pty Ltd [2020] NSWSC 1330

The determination was void because Payment Claim 36 was invalid and ineffective to engage the Act: clause 2(c) of the Goods Supply Agreement provided that each purchase order gave rise to a separate contract, and the payment claim straddled numerous purchase orders and therefore numerous contracts with separate payment dates. The adjudicator therefore had no jurisdiction. In any event, the adjudicator denied Acciona procedural fairness by adopting an unargued implied contractual basis for valuation and by making unforeshadowed adverse findings about Mr Li, and failed to discharge the statutory task of satisfying herself that Holcim had performed the work claimed and of its value.

Jurisdiction
Australia
Judgment Date
29 September 2020
Procedural Posture
Proceedings Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment
Outcome
Adjudication Determination 2020061EA made by the second defendant on 23 July 2020 is void and quashed.
Legal Topics
['validity of Payment Claim' 'multiple Construction Contracts' 'adjudicator Jurisdiction' 'procedural Fairness' 'natural Justice' 'valuation of Progress Payments' 'statutory Task of Adjudicator']
['building and Construction' 'security of Payment' 'administrative Law'] ['validity of Payment Claim' 'multiple Construction Contracts' 'adjudicator Jurisdiction' 'procedural Fairness' 'natural Justice' 'valuation of Progress Payments' 'statutory Task of Adjudicator']

Case Brief

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Procedural Posture

Proceedings Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the adjudicator had jurisdiction where the payment claim claimed for work done under multiple purchase orders alleged to constitute separate contracts.' "Whether the adjudicator was required to consider Acciona's jurisdictional objection despite it not being included in the payment schedule." 'Whether the adjudicator denied procedural fairness by deciding valuation on a contractual basis not advanced by the parties.' 'Whether the adjudicator misapprehended her task by relying on earlier payment schedules rather than Payment Schedule 36.' 'Whether the adjudicator denied procedural fairness by making unforeshadowed findings about delivery dockets and adverse findings about Mr Li.' 'Whether the adjudicator failed to discharge the statutory task of satisfying herself that Holcim had substantiated the work claimed and its value.']

Ratio Decidendi

The determination was void because Payment Claim 36 was invalid and ineffective to engage the Act: clause 2(c) of the Goods Supply Agreement provided that each purchase order gave rise to a separate contract, and the payment claim straddled numerous purchase orders and therefore numerous contracts with separate payment dates. The adjudicator therefore had no jurisdiction. In any event, the adjudicator denied Acciona procedural fairness by adopting an unargued implied contractual basis for valuation and by making unforeshadowed adverse findings about Mr Li, and failed to discharge the statutory task of satisfying herself that Holcim had performed the work claimed and of its value.

Court Disposition

Adjudication Determination 2020061EA made by the second defendant on 23 July 2020 is void and quashed.

Orders

  • ['Declare that Adjudication Determination 2020061EA made by the second defendant on 23 July 2020 is void.' 'Order that the said Adjudication Determination be quashed.' 'Order that the money paid into Court by the plaintiff and any interest be paid out to it or, on direction, to its solicitors.' "Provisionally order...