All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289

All Seasons Air Pty Ltd v Regal Consulting Services Pty Ltd [2017] NSWCA 289

Although cl 37.1 could operate contractually between the parties to deem the early claim to have been made on 20 July 2016, that contractual fiction did not deem service of a payment claim on that date for the purposes of the Act. Because the 12 July 2016 claim was served before the reference date when no statutory entitlement to a progress payment had arisen, it was not a valid payment claim under s 13 and could not found an adjudication within s 22 jurisdiction; the adjudication determination was therefore void.

Jurisdiction
Australia
Judgment Date
10 November 2017
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Validity of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal From the Supreme Court of New South Wales, Equity Division, After the Primary Judge Declared the Adjudication Determination Void
Outcome
Leave to appeal granted; appeal dismissed with costs.
Legal Topics
['progress Claims' 'reference Dates' 'payment Claims' 'adjudication Determination' 'contractual Deeming Provisions' 'service of Notices']
['building and Construction' 'security of Payment' 'contract Law' 'statutory Interpretation'] ['progress Claims' 'reference Dates' 'payment Claims' 'adjudication Determination' 'contractual Deeming Provisions' 'service of Notices']

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Validity of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal From the Supreme Court of New South Wales, Equity Division, After the Primary Judge Declared the Adjudication Determination Void

Legal Issues

  1. 1 ['Whether cl 37.1 of the construction contract deemed a progress claim served before the reference date to have been served on the reference date for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the 12 July 2016 claim was a valid payment claim under s 13 of the Act despite being served before the 20 July 2016 reference date.' 'Whether the adjudicator had jurisdiction to determine the adjudication application based on the 12 July 2016 claim.']

Ratio Decidendi

Although cl 37.1 could operate contractually between the parties to deem the early claim to have been made on 20 July 2016, that contractual fiction did not deem service of a payment claim on that date for the purposes of the Act. Because the 12 July 2016 claim was served before the reference date when no statutory entitlement to a progress payment had arisen, it was not a valid payment claim under s 13 and could not found an adjudication within s 22 jurisdiction; the adjudication determination was therefore void.

Court Disposition

Leave to appeal granted; appeal dismissed with costs.

Orders

  • ['Grant leave to appeal.' 'The applicant to file a notice of appeal in the form of the draft in the White Folder, and otherwise dispense with the requirements of service.' 'Appeal dismissed with costs.']