Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107

Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107

The adjudicator's determination included her stated reasons for treating cl 22.2(1)(e) as not a legitimate or workable condition precedent, and those reasons recorded a complete argument rather than implying reliance on unstated reasons. The adjudicator considered the relevant contractual provision as required by s 22(2)(b); her conclusion that the provision was not to be applied did not cease to be consideration of the contract merely because it may have involved error in construction or law. Accordingly, the determination was not invalid and the primary judge erred in declaring it void.

Jurisdiction
Australia
Judgment Date
21 May 2018
Procedural Posture
Appeal Concerning Judicial Review of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal Appeal From Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed; Supreme Court orders set aside; summons dismissed with costs.
Legal Topics
['security of Payment Adjudication' 'reasons for Adjudication Determination' 'jurisdictional Error' 'consideration of Construction Contract' 'extension of Time Condition Precedent' 'liquidated Damages Set Off']
['building and Construction' 'administrative Law' 'contract Law'] ['security of Payment Adjudication' 'reasons for Adjudication Determination' 'jurisdictional Error' 'consideration of Construction Contract' 'extension of Time Condition Precedent' 'liquidated Damages Set Off']

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Procedural Posture

Appeal Concerning Judicial Review of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal Appeal From Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ["Whether the adjudicator's determination failed to include the reasons for the determination as required by s 22(3)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW)." 'Whether the adjudicator failed to perform her statutory function by refusing to apply or consider cl 22.2(1)(e) of the subcontract concerning extensions of time under the head contract.' "Whether any asserted legal error in the adjudicator's treatment of the contractual condition precedent invalidated the adjudication determination."]

Ratio Decidendi

The adjudicator's determination included her stated reasons for treating cl 22.2(1)(e) as not a legitimate or workable condition precedent, and those reasons recorded a complete argument rather than implying reliance on unstated reasons. The adjudicator considered the relevant contractual provision as required by s 22(2)(b); her conclusion that the provision was not to be applied did not cease to be consideration of the contract merely because it may have involved error in construction or law. Accordingly, the determination was not invalid and the primary judge erred in declaring it void.

Court Disposition

Appeal allowed; Supreme Court orders set aside; summons dismissed with costs.

Orders

  • ['Allow the appeal.' 'Set aside orders 1, 2 and 4 made on 7 March 2018.' 'Dismiss the summons filed 26 February 2018 with costs.' "Order the first respondent to pay the appellant's costs of the appeal."]