Iskra v MMIR Pty Limited [2019] NSWCA 126

Iskra v MMIR Pty Limited [2019] NSWCA 126

On a fair reading of the determination, the adjudicator considered the statutory matters, the terms of the contract, the payment claim and the parties' materials, rejected the owner's contentions including that the claim was grossly excessive, referred to valuation under ss 9 and 10 of the SOP Act, and determined the value of the work by allowing the claim less an acknowledged $6,000 credit. Any error in construing the contract or assessing value was within jurisdiction and did not amount to jurisdictional error.

Jurisdiction
Australia
Judgment Date
30 May 2019
Procedural Posture
Appeal From Supreme Court of New South Wales Judicial Review Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal Judgment
Outcome
Appeal allowed.
Legal Topics
['adjudication of Payment Claim' "judicial Review of Adjudicator's Determination" 'jurisdictional Error' 'valuation of Construction Work' 'security of Payment']
['building and Construction' 'administrative Law'] ['adjudication of Payment Claim' "judicial Review of Adjudicator's Determination" 'jurisdictional Error' 'valuation of Construction Work' 'security of Payment']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales Judicial Review Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether the adjudicator determined the progress claim simply because he rejected the relevance of the respondent's material, rather than addressing the merits of the claim." 'Whether the adjudicator failed to determine the value of the construction work carried out under s 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW).']

Ratio Decidendi

On a fair reading of the determination, the adjudicator considered the statutory matters, the terms of the contract, the payment claim and the parties' materials, rejected the owner's contentions including that the claim was grossly excessive, referred to valuation under ss 9 and 10 of the SOP Act, and determined the value of the work by allowing the claim less an acknowledged $6,000 credit. Any error in construing the contract or assessing value was within jurisdiction and did not amount to jurisdictional error.

Court Disposition

Appeal allowed.

Orders

  • ['Allow the appeal.' 'Vacate the stay order made by the Court on 27 February 2019.' 'Set aside orders 1, 2, 3 and 4 made by the primary judge on 29 January 2019 and, in place, order: Dismiss the summons filed on 21 November 2018.' "Plaintiff to pay the first defendant's costs of the proceedings." 'That the sum of...