Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123

Bauen Constructions Pty Ltd v Sky General Services Pty Ltd & Anor [2012] NSWSC 1123

The adjudicator misconstrued section 13(4)(b) by treating the defects liability period as the relevant time frame rather than asking when the construction work was last carried out. Because the payment claims were made approximately 15 and 16 months after the work was last carried out, the error was jurisdictional and the adjudication determinations should be quashed. In any event, Bauen's adjudication responses were lodged in time when the emails reached Adjudicate Today's designated email address and were capable of retrieval; the adjudicator's failure to consider them denied Bauen natural justice, which also required both adjudications to be set aside. Mandamus was inappropriate, and...

Jurisdiction
Australia
Judgment Date
18 September 2012
Procedural Posture
Equity Division Proceedings Seeking Declarations That Two Adjudication Determinations Are Void or Alternatively Orders Quashing Them / Principal Judgment After Hearing
Outcome
Plaintiff succeeded; declarations and orders quashing the adjudication determinations were proposed, mandamus was refused, and costs were reserved.
Legal Topics
['building and Construction Industry Security of Payment Act Adjudication Determinations' 'payment Claims Served Outside Statutory Time Period' 'jurisdictional Error' 'natural Justice' 'electronic Lodgement of Adjudication Response' 'mandamus']
['building and Construction' 'administrative Law' 'equity'] ['building and Construction Industry Security of Payment Act Adjudication Determinations' 'payment Claims Served Outside Statutory Time Period' 'jurisdictional Error' 'natural Justice' 'electronic Lodgement of Adjudication Response' 'mandamus']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking Declarations That Two Adjudication Determinations Are Void or Alternatively Orders Quashing Them / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Bauen was entitled to relief because the payment claims underlying the adjudication determinations were served outside the 12 month period prescribed by section 13(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the adjudicator failed bona fide to address the requirements of section 22(2)(a) by misconstruing section 13(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether Bauen was denied natural justice because the adjudicator failed to consider Bauen's adjudication responses." 'Whether mandamus was an appropriate form of relief.']

Ratio Decidendi

The adjudicator misconstrued section 13(4)(b) by treating the defects liability period as the relevant time frame rather than asking when the construction work was last carried out. Because the payment claims were made approximately 15 and 16 months after the work was last carried out, the error was jurisdictional and the adjudication determinations should be quashed. In any event, Bauen's adjudication responses were lodged in time when the emails reached Adjudicate Today's designated email address and were capable of retrieval; the adjudicator's failure to consider them denied Bauen natural justice, which also required both adjudications to be set aside. Mandamus was inappropriate, and...

Court Disposition

Plaintiff succeeded; declarations and orders quashing the adjudication determinations were proposed, mandamus was refused, and costs were reserved.

Orders

  • ['The adjudications should be quashed.' 'Both adjudications should be set aside.' 'Mandamus is inappropriate.' 'The Court proposed to make declarations and quash the determinations.' 'The parties were invited to prepare short minutes reflecting the reasons.' 'The question of costs was reserved and the parties were...