Fifty Property Investments Pty Limited v Barry J O'Mara & anor [2006] NSWSC 428

Fifty Property Investments Pty Limited v Barry J O'Mara & anor [2006] NSWSC 428

The adjudicator’s determination was void because there was no construction contract between the parties as required by the Building and Construction Industry Security of Payment Act, 1999; and a denial of natural justice occurred when submissions from Impero were considered by the adjudicator without giving FPI an opportunity to comment, contravening the rules under the Act.

Parties
Plaintiff: Fifty Property Investments Pty Limited; First Defendant: Barry J O'Mara; Second Defendant: Impero Stone
Jurisdiction
Australia
Judgment Date
18 April 2006
Procedural Posture
Judicial Review / Final Judgment
Outcome
The adjudicator's determination is declared void; the second defendant is permanently restrained from enforcing judgment; the second defendant is ordered to pay the plaintiff's costs.
Legal Topics
Adjudication Determination Validity, Natural Justice, Jurisdictional Fact, Construction Contract Existence
Construction Law Administrative Law Judicial Review Adjudication Determination Validity Natural Justice Jurisdictional Fact Construction Contract Existence

Case Brief

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Parties

Fifty Property Investments Pty Limited

Plaintiff

Barry J O'Mara

First Defendant

Impero Stone

Second Defendant

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether there was a construction contract between FPI and Impero Stone
  2. 2 Whether adjudicator's determination under the Building and Construction Industry Security of Payment Act, 1999 is void for lack of jurisdiction
  3. 3 Whether denial of natural justice occurred during adjudication

Ratio Decidendi

The adjudicator’s determination was void because there was no construction contract between the parties as required by the Building and Construction Industry Security of Payment Act, 1999; and a denial of natural justice occurred when submissions from Impero were considered by the adjudicator without giving FPI an opportunity to comment, contravening the rules under the Act.

Court Disposition

The adjudicator's determination is declared void; the second defendant is permanently restrained from enforcing judgment; the second defendant is ordered to pay the plaintiff's costs.

Orders

  • Declare that the determination of the first defendant dated 20 January 2006 is void.
  • Order that the second defendant be permanently restrained from taking any step to enforce the judgment in its favour in proceedings 506 of 2006 in the District Court of New South Wales in Sydney.