Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1229

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1229

The summons failed because the supporting statement was sufficient on its face: the prescribed form allowed identification of a single subcontractor without an attachment, and the absence of an attachment indicated that no disputed or unpaid amounts were identified. The adjudicator's reasons, read fairly and in context of the compressed adjudication process and the material she could consider, showed that she grappled with the owner's alleged defects and offsetting claims, was not satisfied of them, and did not merely rubber stamp the payment claim. No jurisdictional error or want of good faith was established. A stay or restraint on payment out was also refused because the owner showed...

Jurisdiction
Australia
Judgment Date
06 August 2018
Procedural Posture
Application to Quash an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons
Outcome
Summons dismissed with costs; money in court to be paid out to the first defendant, with payment out stayed until 5pm on 15 August 2018.
Legal Topics
['security of Payment Adjudication' 'validity of Payment Claim' 'supporting Statement by Head Contractor' 'jurisdictional Error' 'good Faith Performance of Statutory Function' 'valuation of Construction Work' 'defective and Incomplete Work' 'stay of Payment Out of Court' 'insolvency Risk']
['building and Construction' 'administrative Law' 'equity'] ['security of Payment Adjudication' 'validity of Payment Claim' 'supporting Statement by Head Contractor' 'jurisdictional Error' 'good Faith Performance of Statutory Function' 'valuation of Construction Work' 'defective and Incomplete Work' 'stay of Payment Out of Court' 'insolvency Risk']

Case Brief

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Procedural Posture

Application to Quash an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether the payment claim was invalid because the supporting statement did not include an attachment referred to in s 13(9) of the Building and Construction Industry Security of Payment Act 1999 (NSW) and Sch 1 to the Building and Construction Industry Security of Payment Regulation 2008 (NSW).' 'Whether the adjudicator failed to exercise her statutory function, or failed to perform it in good faith, by not valuing the construction work and defects as required by ss 10(1)(b)(iv) and 22 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' "Whether, if the jurisdictional challenges failed, the Court should prevent the builder from receiving the adjudicated amount because of the owner's claimed offset and the builder's financial position."]

Ratio Decidendi

The summons failed because the supporting statement was sufficient on its face: the prescribed form allowed identification of a single subcontractor without an attachment, and the absence of an attachment indicated that no disputed or unpaid amounts were identified. The adjudicator's reasons, read fairly and in context of the compressed adjudication process and the material she could consider, showed that she grappled with the owner's alleged defects and offsetting claims, was not satisfied of them, and did not merely rubber stamp the payment claim. No jurisdictional error or want of good faith was established. A stay or restraint on payment out was also refused because the owner showed...

Court Disposition

Summons dismissed with costs; money in court to be paid out to the first defendant, with payment out stayed until 5pm on 15 August 2018.

Orders

  • ['The summons is dismissed with costs.' 'The money paid into court together with any interest accrued thereon is to be paid out of court to the first defendant.' 'No other orders as to costs.' 'The order for payment out of court is stayed until 5pm on 15 August 2018.']