Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162

Firedam Civil Engineering v KJP Construction [2007] NSWSC 1162

The adjudicator's determination was void because of a denial of natural justice caused by the adjudicator's failure to consider the plaintiff's submissions due to an erroneous finding on service; valid service was effected by posting the payment schedule to the company's registered office within time per statutory requirements, and actual receipt by an officer was not necessary unless non-delivery was shown.

Jurisdiction
Australia
Judgment Date
25 October 2007
Procedural Posture
Originating Summons for Judicial Review/declarations/injunctions / Final Judgment After Hearing
Outcome
Declarations and final injunctions granted; adjudication determination declared void; costs to plaintiff against first defendant.
Legal Topics
['natural Justice' 'adjudication Determination' 'progress Payments' 'service of Notices' 'statutory Construction']
['equity' 'building and Construction Law' 'administrative Law'] ['natural Justice' 'adjudication Determination' 'progress Payments' 'service of Notices' 'statutory Construction']

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Procedural Posture

Originating Summons for Judicial Review/declarations/injunctions / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether the adjudicator's determination was void due to breach of the rules of natural justice" 'Whether service of a payment schedule was effected within time under the Building & Construction Industry Security of Payment Act 1999 (NSW)' "Whether the adjudicator failed to consider the plaintiff's submissions, constituting a denial of natural justice" 'Whether the adjudication application was made within statutory time limits' 'Whether relief should be by declarations and injunctions or by orders in the nature of certiorari']

Ratio Decidendi

The adjudicator's determination was void because of a denial of natural justice caused by the adjudicator's failure to consider the plaintiff's submissions due to an erroneous finding on service; valid service was effected by posting the payment schedule to the company's registered office within time per statutory requirements, and actual receipt by an officer was not necessary unless non-delivery was shown.

Court Disposition

Declarations and final injunctions granted; adjudication determination declared void; costs to plaintiff against first defendant.

Orders

  • ['Declarations in terms of paragraphs 2 and 3 of the Amended Summons (breach of natural justice; determination void)' 'Final injunction restraining first defendant from taking steps to enforce adjudication determination' "Order that the first defendant pay the plaintiff's costs as agreed or assessed"]