Diona Pty Ltd v Downer EDI Works Pty Ltd [2020] NSWSC 480

Diona Pty Ltd v Downer EDI Works Pty Ltd [2020] NSWSC 480

Diona failed to prove that the adjudicator did not consider the provisions of the contract. Although the adjudicator addressed EOT 18 and EOT 21 by reference to cl 28 and did not expressly refer to cl 40 or Diona's time-bar contention, the determination showed that he understood his obligation to consider the contract. Given the way Diona's adjudication response put the cl 40 argument, the Court was not prepared to infer non-consideration. Any possible wrong decision or misunderstanding was not, without more, jurisdictional error. The summons was therefore dismissed.

Jurisdiction
Australia
Judgment Date
01 May 2020
Procedural Posture
Proceedings in the Equity Division, Technology and Construction List, Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Final Hearing After Interim Ex Parte Injunction and Written Submissions
Outcome
Summons dismissed
Legal Topics
['adjudication Determination' 'jurisdictional Error' 'consideration of Construction Contract' 'extensions of Time' 'liquidated Damages' 'time Bar' 'discretionary Relief']
['building and Construction' 'security of Payment' 'administrative Law'] ['adjudication Determination' 'jurisdictional Error' 'consideration of Construction Contract' 'extensions of Time' 'liquidated Damages' 'time Bar' 'discretionary Relief']

Case Brief

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Procedural Posture

Proceedings in the Equity Division, Technology and Construction List, Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Final Hearing After Interim Ex Parte Injunction and Written Submissions

Legal Issues

  1. 1 ['Whether the adjudication determination was void for jurisdictional error.' 'Whether the adjudicator failed to consider the provisions of the construction contract, particularly cl 40, as required by s 22(2)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether Downer's claims for extensions of time EOT 18 and EOT 21 were barred under the contract so that the adjudicator should have reduced the amount determined by $30,000." 'Whether, if jurisdictional error had been established, relief should be refused or limited as a matter of discretion.']

Ratio Decidendi

Diona failed to prove that the adjudicator did not consider the provisions of the contract. Although the adjudicator addressed EOT 18 and EOT 21 by reference to cl 28 and did not expressly refer to cl 40 or Diona's time-bar contention, the determination showed that he understood his obligation to consider the contract. Given the way Diona's adjudication response put the cl 40 argument, the Court was not prepared to infer non-consideration. Any possible wrong decision or misunderstanding was not, without more, jurisdictional error. The summons was therefore dismissed.

Court Disposition

Summons dismissed

Orders

  • ['The Summons should be dismissed.' 'The parties should bring in short minutes to give effect to these reasons.' 'Costs to be determined on the papers.']