Filadelfia Projects Pty Limited v Entirity Business Services Pty Limited & Anor (No 2) [2011] NSWSC 116

Filadelfia Projects Pty Limited v Entirity Business Services Pty Limited & Anor (No 2) [2011] NSWSC 116

Objectively assessed, Entirity's contract for the electrical work was with Zebicon Pty Limited, not Filadelfia. Zebicon had entered into a building contract with Filadelfia as builder, Entirity invoiced Zebicon, was paid by Zebicon, gave documents certifying a contract with Zebicon, and corresponded with Zebicon about termination without asserting that Filadelfia was the contracting party. Because no construction contract existed between Filadelfia and Entirity, the adjudication determination lacked an essential requirement, and Entirity was restrained from seeking or enforcing an adjudication certificate.

Jurisdiction
Australia
Judgment Date
04 March 2011
Procedural Posture
Proceedings Seeking an Injunction Restraining the First Defendant From Applying for an Adjudication Certificate Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment; Final Determination
Outcome
The plaintiff obtained final injunctive relief against the first defendant, liberty to withdraw the controlled monies, and costs against the first defendant.
Legal Topics
['informal Agreements' 'construction Contracts' 'adjudication Applications Under the Building & Construction Industry Security of Payment Act 1999 (nsw)' 'natural Justice' 'abuse of Process' 'post Contractual Conduct' 'objective Determination of Contracting Parties']
['contract' 'construction Law' 'civil Procedure'] ['informal Agreements' 'construction Contracts' 'adjudication Applications Under the Building & Construction Industry Security of Payment Act 1999 (nsw)' 'natural Justice' 'abuse of Process' 'post Contractual Conduct' 'objective Determination of Contracting Parties']

Case Brief

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Procedural Posture

Proceedings Seeking an Injunction Restraining the First Defendant From Applying for an Adjudication Certificate Under the Building & Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment; Final Determination

Legal Issues

  1. 1 ['Whether there was a construction contract within the meaning of the Building & Construction Industry Security of Payment Act 1999 (NSW) between Filadelfia and Entirity.' "Whether Entirity's contract for electrical work was with Filadelfia or with Zebicon Pty Limited." 'Whether Filadelfia was denied natural justice because it was not supplied with the same documents as those supplied to the adjudicator.' "Whether Entirity's deliberate withholding of relevant information from the adjudicator was an abuse of process or breached a duty of full disclosure."]

Ratio Decidendi

Objectively assessed, Entirity's contract for the electrical work was with Zebicon Pty Limited, not Filadelfia. Zebicon had entered into a building contract with Filadelfia as builder, Entirity invoiced Zebicon, was paid by Zebicon, gave documents certifying a contract with Zebicon, and corresponded with Zebicon about termination without asserting that Filadelfia was the contracting party. Because no construction contract existed between Filadelfia and Entirity, the adjudication determination lacked an essential requirement, and Entirity was restrained from seeking or enforcing an adjudication certificate.

Court Disposition

The plaintiff obtained final injunctive relief against the first defendant, liberty to withdraw the controlled monies, and costs against the first defendant.

Orders

  • ['The first defendant be restrained from seeking or enforcing an Adjudication Certificate under the Building and Construction Industries Security of Payment Act 1999 (NSW) in respect of an adjudication determination of Adjudicator Sullivan dated 23 March 2010.' 'The plaintiff be at liberty to withdraw the sum of...