Castle Constructions Pty Ltd v Napoli Excavations and Civil Pty Ltd [2023] NSWSC 348

Castle Constructions Pty Ltd v Napoli Excavations and Civil Pty Ltd [2023] NSWSC 348

The adjudicator entirely overlooked the plaintiff's duly made submission that, because the contract had been terminated, only one payment claim could later be made and the 30 September 2022 payment claim was invalid. That submission was made in support of the payment schedule and had to be considered under s 22(2)(d). The failure was material because the adjudicator may well have reached a different conclusion if it had been considered, and the failure therefore amounted to jurisdictional error rendering the adjudication determination void and of no effect.

Jurisdiction
Australia
Judgment Date
05 April 2023
Procedural Posture
Summons Seeking a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void and of No Effect / Final Hearing
Outcome
Adjudication determination declared void and of no effect.
Legal Topics
['adjudication Determination' 'jurisdictional Error' 'payment Claims After Termination' 'failure to Consider Submissions' 'materiality']
['building and Construction' 'security of Payment' 'administrative Law'] ['adjudication Determination' 'jurisdictional Error' 'payment Claims After Termination' 'failure to Consider Submissions' 'materiality']

Case Brief

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Procedural Posture

Summons Seeking a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void and of No Effect / Final Hearing

Legal Issues

  1. 1 ['Whether the adjudication determination was affected by jurisdictional error' 'Whether the adjudicator failed to consider a submission duly made in support of the payment schedule as required by s 22(2)(d) of the Building and Construction Industry Security of Payment Act 1999 (NSW)' 'Whether any failure to consider the submission was material' 'Whether s 13(1C) of the Building and Construction Industry Security of Payment Act 1999 (NSW) meant the 30 September 2022 payment claim was invalid because only one payment claim could be served after termination']

Ratio Decidendi

The adjudicator entirely overlooked the plaintiff's duly made submission that, because the contract had been terminated, only one payment claim could later be made and the 30 September 2022 payment claim was invalid. That submission was made in support of the payment schedule and had to be considered under s 22(2)(d). The failure was material because the adjudicator may well have reached a different conclusion if it had been considered, and the failure therefore amounted to jurisdictional error rendering the adjudication determination void and of no effect.

Court Disposition

Adjudication determination declared void and of no effect.

Orders

  • ['Service of the Summons, Notice of Motion, and affidavit in support by email to Mr Guerrera on 15 December 2022 was taken as service upon the first defendant on that date.' 'The adjudication determination made by the second defendant (2022ADJT427) served on 8 December 2022 is void and of no effect.' 'The money paid...