Holdmark v Melhemcorp [2009] NSWSC 305

Holdmark v Melhemcorp [2009] NSWSC 305

The adjudicator failed to bona fide exercise the power to correct a material miscalculation under s 22(5) of the Act, as required by the statute and supporting case law, by not deducting payments made directly to subcontractors at the request of the defendant. The plaintiff is therefore entitled to an injunction restraining enforcement of the adjudication amount beyond what remains due after deducting those payments.

Parties
Plaintiff: Holdmark (Aust) Pty Ltd; 1st Defendant: Melhemcorp Pty Ltd; 2nd Defendant: Mr Max Tonkin
Jurisdiction
Australia
Judgment Date
23 April 2009
Procedural Posture
Application for Injunction – Dispute Under Building and Construction Industry Security of Payment Act 1999 / Hearing of Application for Interlocutory And/or Final Injunction
Outcome
Injunction granted restraining enforcement of adjudication award for the amount by which it exceeds $167,074.76.
Legal Topics
Adjudication Under Security of Payment Act, Correction of Adjudication Determination, Injunction to Restrain Enforcement of Adjudication
Contracts Construction Law Adjudication Under Security of Payment Act Correction of Adjudication Determination Injunction to Restrain Enforcement of Adjudication

Case Brief

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Parties

Holdmark (Aust) Pty Ltd

Plaintiff

Melhemcorp Pty Ltd

1st Defendant

Mr Max Tonkin

2nd Defendant

Procedural Posture

Application for Injunction – Dispute Under Building and Construction Industry Security of Payment Act 1999 / Hearing of Application for Interlocutory And/or Final Injunction

Legal Issues

  1. 1 Whether the adjudicator failed to bona fide exercise the power under s 22(5) of the Act to correct an error
  2. 2 Whether an injunction should be granted to restrain enforcement of part of an adjudication award

Ratio Decidendi

The adjudicator failed to bona fide exercise the power to correct a material miscalculation under s 22(5) of the Act, as required by the statute and supporting case law, by not deducting payments made directly to subcontractors at the request of the defendant. The plaintiff is therefore entitled to an injunction restraining enforcement of the adjudication amount beyond what remains due after deducting those payments.

Court Disposition

Injunction granted restraining enforcement of adjudication award for the amount by which it exceeds $167,074.76.

Orders

  • An injunction be granted restraining Melhemcorp from entering or enforcing a judgment for a sum greater than $167,074.76.
  • Parties to bring in short minutes and deal with costs.