Kembla Coal & Coke v Select Civil & Ors [2004] NSWSC 628

Kembla Coal & Coke v Select Civil & Ors [2004] NSWSC 628

Claims for prerogative relief failed as the alleged errors by the adjudicator either did not amount to jurisdictional error or were not grounds for relief as a matter of discretion where not raised before the adjudicator. Contractual entitlements, such as for preparation and delay costs, could be validly included if the contract so provided. Even assuming errors, relief was discretionary and not granted in this case.

Parties
Plaintiff: Kembla Coal & Coke Pty Ltd; First Defendant: Select Civil Pty Ltd; Second Defendant: David Campbell-Williams
Jurisdiction
Australia
Judgment Date
23 July 2004
Procedural Posture
Originating Summons—judicial Review (application to Quash Adjudication Determination) / Judgment After Hearing
Outcome
Summons dismissed—adjudication determination not quashed.
Legal Topics
Security of Payment, Jurisdictional Error, Adjudication Under Security of Payment Legislation, Contract Interpretation
Building and Construction Administrative Law Security of Payment Jurisdictional Error Adjudication Under Security of Payment Legislation Contract Interpretation

Case Brief

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Parties

Kembla Coal & Coke Pty Ltd

Plaintiff

Select Civil Pty Ltd

First Defendant

David Campbell-Williams

Second Defendant

Procedural Posture

Originating Summons—judicial Review (application to Quash Adjudication Determination) / Judgment After Hearing

Legal Issues

  1. 1 Whether the adjudicator erred in law or acted in excess of jurisdiction under the Building and Construction Industry Security of Payment Act 1999 (NSW) by: (1) deciding an amount was due without a reference date; (2) applying statutory amendments; (3) including preparation costs; (4) including delay costs and damages; (5) allowing compound interest.

Ratio Decidendi

Claims for prerogative relief failed as the alleged errors by the adjudicator either did not amount to jurisdictional error or were not grounds for relief as a matter of discretion where not raised before the adjudicator. Contractual entitlements, such as for preparation and delay costs, could be validly included if the contract so provided. Even assuming errors, relief was discretionary and not granted in this case.

Court Disposition

Summons dismissed—adjudication determination not quashed.

Orders

  • The summons is dismissed.
  • The Court will hear the parties on costs.