Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd [2023] FCA 1473

Dickson Developments Precinct 1 Pty Ltd v Core Building Group Pty Ltd [2023] FCA 1473

The originating application failed because a valid reference date existed on 28 July 2023: the contractual Date of Completion had not occurred, since no Certificate of Completion had been issued and no cl 51 determination had been made, so the monthly progress claim mechanism remained operative. The adjudicator's treatment of EOT 67 and liquidated damages was supported by evidence and was not so illogical or irrational as to constitute jurisdictional error. The unsolicited submissions were not outside s 24(2), because "properly made" was not confined to submissions made with the adjudication application or adjudication response, and in any event whether they were properly made was for the...

Jurisdiction
Australia
Judgment Date
27 November 2023
Procedural Posture
Application for Judicial Review of an Adjudication Determination in Relation to a Construction Contract / Final Judgment on Originating Application
Outcome
Originating application dismissed with costs; interlocutory regime terminated and money paid into Court released to Core.
Legal Topics
['judicial Review of Adjudication Determination' 'reference Date for Payment Claim' 'jurisdictional Error' 'liquidated Damages' 'unsolicited Submissions' 'release of Retention Monies or Security' 'building and Construction Industry (security of Payments) Act 2009 (act)']
['administrative Law' 'statutory Interpretation' 'building and Construction' 'security of Payments'] ['judicial Review of Adjudication Determination' 'reference Date for Payment Claim' 'jurisdictional Error' 'liquidated Damages' 'unsolicited Submissions' 'release of Retention Monies or Security' 'building and Construction Industry (security of Payments) Act 2009 (act)']

Case Brief

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Procedural Posture

Application for Judicial Review of an Adjudication Determination in Relation to a Construction Contract / Final Judgment on Originating Application

Legal Issues

  1. 1 ['Whether there was a reference date for the August Payment Claim, being a jurisdictional criterion for the making of the adjudication determination.' "Whether the adjudicator's decision concerning extensions of time and liquidated damages was so illogical or irrational as to constitute jurisdictional error." 'Whether the adjudicator committed jurisdictional error by taking into account unsolicited submissions from Core.' "Whether the adjudicator's decision to allow release of $930,000 in security was affected by jurisdictional error." 'How the expression "properly made" in s 24(2)(c) and (e) of the Building and Construction Industry (Security of Payments) Act 2009 (ACT) should be construed.' 'Whether the elements of s 15(3)(b) of the Building and Construction Industry (Security of Payments) Act 2009 (ACT) are jurisdictional preconditions for the Court or matters for the adjudicator.']

Ratio Decidendi

The originating application failed because a valid reference date existed on 28 July 2023: the contractual Date of Completion had not occurred, since no Certificate of Completion had been issued and no cl 51 determination had been made, so the monthly progress claim mechanism remained operative. The adjudicator's treatment of EOT 67 and liquidated damages was supported by evidence and was not so illogical or irrational as to constitute jurisdictional error. The unsolicited submissions were not outside s 24(2), because "properly made" was not confined to submissions made with the adjudication application or adjudication response, and in any event whether they were properly made was for the...

Court Disposition

Originating application dismissed with costs; interlocutory regime terminated and money paid into Court released to Core.

Orders

  • ['The originating application be dismissed.' "The applicant pay the first respondent's costs of the proceedings." "In relation to the orders made on 3 November 2023, the amount of money held by the Court as a result of the applicant's payment into Court pursuant to paragraph 1 of those orders be released to the...