H M Australia Holdings Pty Limited v Edelbrand Pty Limited t/as Domus Homes & Anor [2011] NSWSC 604

H M Australia Holdings Pty Limited v Edelbrand Pty Limited t/as Domus Homes & Anor [2011] NSWSC 604

The adjudicator proceeded to a determination in the absence of a construction contract as required by the Act, as Domus was only coordinating, not undertaking, the provision of services defined by section 6(1)(b). The existence of such a contract was a basic and essential jurisdictional fact; as none existed, the determination was void and must be set aside.

Jurisdiction
Australia
Judgment Date
21 June 2011
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Determination set aside; costs to plaintiff.
Legal Topics
['security of Payment' 'adjudication Determinations' 'jurisdictional Error' 'project Management Services' 'construction Contracts']
['building and Construction' 'administrative Law'] ['security of Payment' 'adjudication Determinations' 'jurisdictional Error' 'project Management Services' 'construction Contracts']

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Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 ['Whether there existed a construction contract to which the Building and Construction Industry Security of Payment Act 1999 (NSW) applies' 'Whether the adjudicator’s determination was void for failure to satisfy essential preconditions under the Act' 'Whether sufficient notification was given of intention to apply for adjudication' 'Whether the appointment of the adjudicator was valid']

Ratio Decidendi

The adjudicator proceeded to a determination in the absence of a construction contract as required by the Act, as Domus was only coordinating, not undertaking, the provision of services defined by section 6(1)(b). The existence of such a contract was a basic and essential jurisdictional fact; as none existed, the determination was void and must be set aside.

Court Disposition

Determination set aside; costs to plaintiff.

Orders

  • ['Adjudication No 2011ADJT043 made by Phillip Davenport on 14 February 2011 under the Building and Construction Industry Security of Payment Act 1999 is void and should be set aside.' "The first defendant is to pay the plaintiff's costs in the cause."]