Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd [2017] NSWSC 232

Futurepower Developments Pty Ltd v TJ & RF Fordham Pty Ltd [2017] NSWSC 232

The adjudication determination was not void for jurisdictional error. The failure to deduct the amount already paid was an accidental slip capable of correction under s 22(5) of the Act and did not vitiate the determination. The Adjudicator identified and considered the essential issues raised by Futurepower, including Mr Harding's role, compliance with the variation provisions, and proof of asbestos remediation works, and gave reasons sufficient to show that he had turned his mind to those issues. The court was not required to determine whether every conclusion was correct, because any errors alleged did not amount to denial of natural justice or jurisdictional error.

Jurisdiction
Australia
Judgment Date
14 March 2017
Procedural Posture
Judicial Review of Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons Seeking to Quash Adjudication Determination
Outcome
The claim for relief in paragraphs 1, 2, 3, 7 and 8 of the summons dismissed with costs.
Legal Topics
['judicial Review' 'jurisdictional Error' 'natural Justice and Procedural Fairness' 'adequacy of Reasons' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Determination' 'contract Variations' "superintendent's Representative"]
['administrative Law' 'building and Construction Law'] ['judicial Review' 'jurisdictional Error' 'natural Justice and Procedural Fairness' 'adequacy of Reasons' 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Determination' 'contract Variations' "superintendent's Representative"]

Case Brief

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Procedural Posture

Judicial Review of Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons Seeking to Quash Adjudication Determination

Legal Issues

  1. 1 ['Whether the adjudicator failed to take account of the amount paid by Futurepower and whether that vitiated the determination for jurisdictional error.' "Whether the adjudicator failed to afford natural justice or procedural fairness by failing to have proper regard to Futurepower's submissions." "Whether the adjudicator gave sufficient reasons for finding that Mr Harding could give directions on behalf of the Superintendent or acted as a de facto Superintendent's Representative." "Whether the adjudicator adequately dealt with Futurepower's arguments concerning compliance with clauses 36 and 58 of the Contract for variations." 'Whether the adjudicator gave adequate reasons for accepting that the asbestos remediation works were carried out on the site as claimed.' 'Whether the adjudicator adequately dealt with variations 02 to 08 by referring back to his reasoning on variation no 1.']

Ratio Decidendi

The adjudication determination was not void for jurisdictional error. The failure to deduct the amount already paid was an accidental slip capable of correction under s 22(5) of the Act and did not vitiate the determination. The Adjudicator identified and considered the essential issues raised by Futurepower, including Mr Harding's role, compliance with the variation provisions, and proof of asbestos remediation works, and gave reasons sufficient to show that he had turned his mind to those issues. The court was not required to determine whether every conclusion was correct, because any errors alleged did not amount to denial of natural justice or jurisdictional error.

Court Disposition

The claim for relief in paragraphs 1, 2, 3, 7 and 8 of the summons dismissed with costs.

Orders

  • ['The claim for relief in paragraphs 1, 2, 3, 7 and 8 of the summons be dismissed with costs.' 'The Court will hear the parties on what ancillary orders should be made in the light of this judgment; if the parties can agree on the terms of the orders, the Court will make them in chambers.']