Dickson Developments Precinct 5 Pty Ltd v Core Building Group Pty Ltd [2024] FCA 86

Dickson Developments Precinct 5 Pty Ltd v Core Building Group Pty Ltd [2024] FCA 86

The adjudicator made a jurisdictional error by determining that a valid reference date existed for PC 36; in fact, the only available reference date under the contract for post-final completion work had already been used for PC 35. No Separable Part was created in accordance with the contract, the default statutory provision did not apply, and estoppel by convention was not established. Accordingly, the adjudicator's determination was void.

Parties
Applicant: Dickson Developments Precinct 5 Pty Ltd; First Respondent: Core Building Group Pty Ltd; Second Respondent: Max Tonkin
Jurisdiction
Australia
Judgment Date
15 February 2024
Procedural Posture
Application for Judicial Review / Final Judgment at First Instance
Outcome
Application allowed; determination declared void
Legal Topics
Judicial Review, Adjudicator Determination, Construction Contracts, Jurisdictional Error, Payment Claim Reference Date, Separable Part, Estoppel by Convention
Administrative Law Construction Law Judicial Review Adjudicator Determination Construction Contracts Jurisdictional Error Payment Claim Reference Date Separable Part +1 more

Case Brief

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Parties

Dickson Developments Precinct 5 Pty Ltd

Applicant

Core Building Group Pty Ltd

First Respondent

Max Tonkin

Second Respondent

Procedural Posture

Application for Judicial Review / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the adjudicator's determination under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) was affected by jurisdictional error
  2. 2 Whether there was a valid reference date for the payment claim (PC 36)
  3. 3 Whether any part of the works constituted a Separable Part permitting additional reference dates

Ratio Decidendi

The adjudicator made a jurisdictional error by determining that a valid reference date existed for PC 36; in fact, the only available reference date under the contract for post-final completion work had already been used for PC 35. No Separable Part was created in accordance with the contract, the default statutory provision did not apply, and estoppel by convention was not established. Accordingly, the adjudicator's determination was void.

Court Disposition

Application allowed; determination declared void

Orders

  • The determination made on 3 November 2023 in respect of adjudication application 2023ACTAT065 (as amended on 7 November 2023) pursuant to the Building and Construction Industry (Security of Payment) Act 2009 (ACT) is void.
  • The first respondent pay the applicant's costs of the proceeding.