Biseja v NSI Group [2006] NSWSC 835

Biseja v NSI Group [2006] NSWSC 835

The adjudicator found that the project management fee was quantified at 10 percent of the construction cost and that any transfer of units was a means of payment or discharge, not the measure of consideration. That finding was open on the unchallenged material before the adjudicator. Accordingly, s 7(2)(c) did not...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 August 2006
Procedural Posture
Equity Proceedings Concerning a Challenge to an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 / Final Determination of Amended Notice of Motion
Outcome
Amended notice of motion dismissed; costs ordered against the applicant; injunction restraining enforcement of the adjudicator's determination dissolved.
Legal Topics
['adjudication Determination' 'project Management Services as Related Goods or Services' 'building and Construction Industry Security of Payment Act 1999 S 7(2)(c)' 'reviewable Error' 'brodyn Validity Requirements']
['building and Construction' 'security of Payment' 'administrative Law' 'equity'] ['adjudication Determination' 'project Management Services as Related Goods or Services' 'building and Construction Industry Security of Payment Act 1999 S 7(2)(c)' 'reviewable Error' 'brodyn Validity Requirements']

Source-derived case record

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Procedural Posture

Equity Proceedings Concerning a Challenge to an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 / Final Determination of Amended Notice of Motion

Legal Issues

  1. 1 ['Whether the agreement for project management services was excluded from the Building and Construction Industry Security of Payment Act 1999 by s 7(2)(c).' "Whether the adjudicator's finding about the project management fee and transfer of units was open on the material before him." "Whether the adjudicator's determination was void for failure to satisfy an essential requirement identified in Brodyn Pty Limited v Davenport (2004) 61 NSWLR 421."]

Ratio Decidendi

The adjudicator found that the project management fee was quantified at 10 percent of the construction cost and that any transfer of units was a means of payment or discharge, not the measure of consideration. That finding was open on the unchallenged material before the adjudicator. Accordingly, s 7(2)(c) did not exclude the agreement from the Act and the adjudicator did not make reviewable error; the amended notice of motion was dismissed.

Court Disposition

Amended notice of motion dismissed; costs ordered against the applicant; injunction restraining enforcement of the adjudicator's determination dissolved.

Orders

  • ['The plaintiff, by senior counsel, undertakes to the Court that it will not seek to advance any other challenge to the determination of the adjudicator.' 'The amended notice of motion filed in Court on 4 August 2006 is dismissed.' "The applicant is to pay the respondent's costs of that notice of motion." "The...