CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251

CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251

The Adjudicator's decision to exclude consideration of the Plaintiff's submissions on the Second EOT claim was irrational and without reasonable foundation as the payment schedule did include the claim. This constituted denial of procedural fairness and a jurisdictional error, justifying that part of the decision being quashed. No jurisdictional error was established in relation to the Carry Over claim. The Plaintiff is entitled to relief, subject to accepting conditions including liability for half of the Adjudicator's fees and not re-agitating the Carry Over claim except at final hearing.

Parties
Plaintiff: CC Builders (Aust) Pty Ltd; First Defendant: Milestone Civil Pty Ltd; Second Defendant: Robert Sundercombe
Jurisdiction
Australia
Judgment Date
06 September 2019
Procedural Posture
Proceedings Commenced by Summons and Technology and Construction List Statement / Judgment Following Hearing
Outcome
Complaint in relation to Second EOT claim upheld; Adjudicator's decision on this issue quashed; remainder of determination upheld; Plaintiff to accept liability for half of Adjudicator's fees, subject to conditions to be set; parties to be heard on form of orders and costs.
Legal Topics
Security of Payment, Procedural Fairness, Jurisdictional Error, Adjudicator's Fees
Building and Construction Law Equity Security of Payment Procedural Fairness Jurisdictional Error Adjudicator's Fees

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Parties

CC Builders (Aust) Pty Ltd

Plaintiff

Milestone Civil Pty Ltd

First Defendant

Robert Sundercombe

Second Defendant

Procedural Posture

Proceedings Commenced by Summons and Technology and Construction List Statement / Judgment Following Hearing

Legal Issues

  1. 1 Whether the Adjudicator denied the Plaintiff natural justice and procedural fairness by failing to consider Plaintiff's submissions on the Second EOT claim
  2. 2 Whether the Adjudicator made a jurisdictional error in relation to the Carry Over claim
  3. 3 Appropriate disposition of Adjudicator's fees under the Act

Ratio Decidendi

The Adjudicator's decision to exclude consideration of the Plaintiff's submissions on the Second EOT claim was irrational and without reasonable foundation as the payment schedule did include the claim. This constituted denial of procedural fairness and a jurisdictional error, justifying that part of the decision being quashed. No jurisdictional error was established in relation to the Carry Over claim. The Plaintiff is entitled to relief, subject to accepting conditions including liability for half of the Adjudicator's fees and not re-agitating the Carry Over claim except at final hearing.

Court Disposition

Complaint in relation to Second EOT claim upheld; Adjudicator's decision on this issue quashed; remainder of determination upheld; Plaintiff to accept liability for half of Adjudicator's fees, subject to conditions to be set; parties to be heard on form of orders and costs.

Orders

  • The Adjudicator's decision in relation to the Second EOT claim is quashed, subject to conditions.
  • No error demonstrated on the Carry Over claim and no error of jurisdictional kind identified.