Forte Sydney Carlingford Development Pty Limited v Forte Sydney Carlingford Pty Limited [2024] FCAFC 9

Procedural Posture

Application for Leave to Appeal / Judgment on Application for Leave to Appeal

Legal Issues

1. 1 ["Whether the primary judge's restraining orders preventing adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) should be reconsidered on appeal" "Whether the adjudicator's determination was vitiated by jurisdictional error and could thus be ignored or was valid for the purposes of the Act" 'Whether there was an abuse of process by submitting repeated adjudication applications under the Act based on the same payment claim' 'Interpretation and application of s 7(3)(c)(iii) and s 26(1) of the Security of Payment Act']

Ratio Decidendi

The Court held that the primary judge's orders were not attended by sufficient doubt to warrant reconsideration nor was there a risk of substantial injustice if leave were refused. The adjudicator's determination that there was no construction contract was a valid determination for the purposes of s 22 of the SOP Act, and any assertion of jurisdictional error should be determined by the court and not by the claimant unilaterally. Repetitive adjudication applications on the same claim constitute an abuse of process. The interim orders were a proper exercise of discretion.

Court Disposition

Application for leave to appeal dismissed

Orders

• ['The application for leave to appeal is dismissed.' "The applicant is to pay the first respondent's costs."]