Fitz Jersey v Atlas Construction Group [2017] NSWSC 340

Fitz Jersey v Atlas Construction Group [2017] NSWSC 340

It is at least arguable, and not plainly hopeless, that either the absence of a valid reference date or the effect of the commercial settlement could have deprived the adjudicator of jurisdiction. As such, summary dismissal is not warranted and leave to amend should be granted. Order for discovery is appropriate given exceptional circumstances shown and the amendment allowed.

Jurisdiction
Australia
Judgment Date
05 April 2017
Procedural Posture
Equity Technology and Construction List / Interlocutory Determination on Applications to Amend, for Discovery, and for Summary Dismissal
Outcome
Interlocutory orders: Plaintiff granted leave to amend summons and list statement; defendant to provide discovery; summary dismissal refused.
Legal Topics
['security of Payment' 'adjudication Determinations' 'jurisdictional Error' 'amendment of Pleadings' 'summary Dismissal' 'discovery']
['building and Construction' 'civil Procedure'] ['security of Payment' 'adjudication Determinations' 'jurisdictional Error' 'amendment of Pleadings' 'summary Dismissal' 'discovery']

Case Brief

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Procedural Posture

Equity Technology and Construction List / Interlocutory Determination on Applications to Amend, for Discovery, and for Summary Dismissal

Legal Issues

  1. 1 ['Whether the adjudicator had jurisdiction under the Building and Construction Industry Security of Payment Act 1999 (NSW) to make the determination' 'Whether summary dismissal is warranted' 'Whether leave to amend the summons and list statement should be granted' 'Whether discovery should be ordered']

Ratio Decidendi

It is at least arguable, and not plainly hopeless, that either the absence of a valid reference date or the effect of the commercial settlement could have deprived the adjudicator of jurisdiction. As such, summary dismissal is not warranted and leave to amend should be granted. Order for discovery is appropriate given exceptional circumstances shown and the amendment allowed.

Court Disposition

Interlocutory orders: Plaintiff granted leave to amend summons and list statement; defendant to provide discovery; summary dismissal refused.

Orders

  • ['Grant the plaintiff leave to amend its summons and technology and construction list statement by filing amended documents in the forms initialled by the judge and dated 5 April 2017.' 'Direct that the amended summons and list statement be filed and served by 5:00 pm 7 April 2017.' 'Order the plaintiff to pay the...