EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162

EnerMech Pty Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2024] NSWCA 162

The appeal was allowed because the Security of Payment Act does not contain an essential jurisdictional condition that a payment claim be characterised by the Court as a claim for construction work. Where a claimant asserts an entitlement to payment under a construction contract, disputes about the proper construction of the contract, whether work has been paid for, and the effect of recourse to security are matters for the adjudicator, subject only to limited review for jurisdictional error. PC 29 was therefore not invalid on the basis accepted by the primary judge.

Jurisdiction
Australia
Judgment Date
10 July 2024
Procedural Posture
Appeal Concerning Validity of a Payment Claim and Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Appeal From the Supreme Court of New South Wales, Equity Division, Technology and Construction List, Which Quashed the Adjudication Determination and Restrained Enforcement
Outcome
Appeal allowed; orders quashing and restraining enforcement of the adjudication determination set aside; amended summons dismissed; payment and costs orders made in favour of the appellant, subject to costs of the cross-summons.
Legal Topics
['payment Claim Validity' 'progress Payments' 'construction Contract' 'adjudication Determination' 'jurisdictional Error' 'judicial Review' 'recourse to Security' 'bank Guarantees']
['building and Construction' 'security of Payment' 'administrative Law' 'contract Law'] ['payment Claim Validity' 'progress Payments' 'construction Contract' 'adjudication Determination' 'jurisdictional Error' 'judicial Review' 'recourse to Security' 'bank Guarantees']

Case Brief

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Procedural Posture

Appeal Concerning Validity of a Payment Claim and Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Appeal From the Supreme Court of New South Wales, Equity Division, Technology and Construction List, Which Quashed the Adjudication Determination and Restrained Enforcement

Legal Issues

  1. 1 ['Whether a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) may be made only for construction work or related goods and services.' 'Whether compliance with any asserted requirement that a payment claim be for construction work is a jurisdictional fact for the Court or a matter for the adjudicator.' 'Whether PC 29 was invalid because it sought to recover an amount obtained by the respondents through recourse to bank guarantees provided by the appellant.']

Ratio Decidendi

The appeal was allowed because the Security of Payment Act does not contain an essential jurisdictional condition that a payment claim be characterised by the Court as a claim for construction work. Where a claimant asserts an entitlement to payment under a construction contract, disputes about the proper construction of the contract, whether work has been paid for, and the effect of recourse to security are matters for the adjudicator, subject only to limited review for jurisdictional error. PC 29 was therefore not invalid on the basis accepted by the primary judge.

Court Disposition

Appeal allowed; orders quashing and restraining enforcement of the adjudication determination set aside; amended summons dismissed; payment and costs orders made in favour of the appellant, subject to costs of the cross-summons.

Orders

  • ['Allow the appeal from the judgment in the Equity Division given on 14 December 2023.' 'Set aside orders 1, 2 and 5 entered on 15 December 2023 and in their place order that the amended summons dated 24 October 2023 be dismissed.' 'Order that the plaintiffs pay the costs of the first defendant of the summons.'...