Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399

Cardinal Project Services Pty Ltd v Hanave Pty Ltd [2011] NSWCA 399

Where an adjudicator issues only a purported but void determination, the adjudicator has failed to determine the application for the purposes of s 26(1)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW); the five business day period to make a new application commences from the expiry of the original period allowed for determination, not from the date the determination is declared void or quashed by a court.

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Appeal / Appellate Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['security of Payment Act Adjudication Procedure' 'time Limits for Adjudication Applications' 'consequences of Void Adjudication Determinations' "judicial Review of Adjudicator's Decisions"]
['building and Construction Law' 'administrative Law' 'statutory Interpretation'] ['security of Payment Act Adjudication Procedure' 'time Limits for Adjudication Applications' 'consequences of Void Adjudication Determinations' "judicial Review of Adjudicator's Decisions"]

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Procedural Posture

Appeal / Appellate Judgment

Legal Issues

  1. 1 ["Does an adjudicator who issues a void determination 'fail to determine' the adjudication application for the purposes of s 26(1)(b) of the Building and Construction Industry Security of Payment Act 1999?" 'When does the time for lodging a new adjudication application commence to run under s 26(3) of the Act?']

Ratio Decidendi

Where an adjudicator issues only a purported but void determination, the adjudicator has failed to determine the application for the purposes of s 26(1)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW); the five business day period to make a new application commences from the expiry of the original period allowed for determination, not from the date the determination is declared void or quashed by a court.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed.' "Appellant to pay the respondent's costs."]