EMERGENCY SERVICES SUPERANNUATION BOARD v ROBERT SUNDERCOMBE & ANOR [2004] NSWSC 405

EMERGENCY SERVICES SUPERANNUATION BOARD v ROBERT SUNDERCOMBE & ANOR [2004] NSWSC 405

The plaintiff failed to establish any jurisdictional error or other basis for permanent injunctive relief. Lipman’s acceptance of the payment required as a condition of quashing the earlier determination did not amount to an election precluding it from exercising rights under the Act. The order quashing the prior determination triggered the operation of s 26, permitting Lipman to withdraw the earlier adjudication application and make a new application within time. The adjudicator dealt with the alleged insufficiency of the payment claim, no jurisdictional error was shown in relation to Lipman’s reliance on clause 36.2(b), and the agreed error in the payment date was not jurisdictional.

Jurisdiction
Australia
Judgment Date
09 September 2004
Procedural Posture
Proceedings for Administrative Law Relief and Injunctive Relief Concerning an Adjudication Determination Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Final Hearing of Further Amended Summons After Interim Injunction
Outcome
Further Amended Summons dismissed with costs; permanent injunction refused; interim injunction discharged.
Legal Topics
['jurisdictional Error' 'security of Payment Adjudication' 'withdrawal of Adjudication Application' 'permanent Injunction' 'payment Claims and Payment Schedules']
['administrative Law' 'building and Construction' 'equity'] ['jurisdictional Error' 'security of Payment Adjudication' 'withdrawal of Adjudication Application' 'permanent Injunction' 'payment Claims and Payment Schedules']

Case Brief

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Procedural Posture

Proceedings for Administrative Law Relief and Injunctive Relief Concerning an Adjudication Determination Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Final Hearing of Further Amended Summons After Interim Injunction

Legal Issues

  1. 1 ['Whether Lipman was precluded by election from withdrawing the first adjudication application and making a new adjudication application after accepting payment of the unaffected amount from the first determination.' 'Whether s 26(1)(b) of the Building & Construction Industry Security of Payment Act 1999 (NSW) permitted withdrawal and a new adjudication application after the first adjudication determination was quashed.' 'Whether the payment claim was invalid or insufficiently identified the construction work, amount claimed, and contractual basis for the claim.' 'Whether the adjudicator committed jurisdictional error by failing to address submissions put by the plaintiff.' 'Whether Lipman was precluded from relying in the second adjudication on clause 36.2(b) after submissions in the first adjudication had referred to clause 36.4(d).' 'Whether the adjudicator committed jurisdictional error by determining 21 June 2004 as the date on which the adjudicated amount became payable under s 22(1)(b).']

Ratio Decidendi

The plaintiff failed to establish any jurisdictional error or other basis for permanent injunctive relief. Lipman’s acceptance of the payment required as a condition of quashing the earlier determination did not amount to an election precluding it from exercising rights under the Act. The order quashing the prior determination triggered the operation of s 26, permitting Lipman to withdraw the earlier adjudication application and make a new application within time. The adjudicator dealt with the alleged insufficiency of the payment claim, no jurisdictional error was shown in relation to Lipman’s reliance on clause 36.2(b), and the agreed error in the payment date was not jurisdictional.

Court Disposition

Further Amended Summons dismissed with costs; permanent injunction refused; interim injunction discharged.

Orders

  • ['Permanent injunction refused.' 'The injunction granted by Nicholas J is discharged.' 'The Further Amended Summons to be filed tomorrow is dismissed.' "The plaintiff is to pay the defendant's costs."]