Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602

Kitchen Xchange v Formacon Building Services [2014] NSWSC 1602

The third payment claim related to the same reference date as the second payment claim and the second payment claim had not been withdrawn, so the third payment claim was served in breach of s 13(5) and could not found an adjudication. In addition, none of the payment claims was accompanied by the supporting statement required by s 13(7), which made service ineffective or invalid. Because proper service of a payment claim is an essential precondition to adjudicator jurisdiction, the adjudicator lacked jurisdiction and the determination had to be quashed.

Jurisdiction
Australia
Judgment Date
05 November 2014
Procedural Posture
Application for Relief in the Nature of Certiorari to Quash an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing
Outcome
Adjudication determination quashed; ancillary orders made.
Legal Topics
['validity of Payment Claim' 'multiple Payment Claims for the Same Reference Date' 'withdrawal of Payment Claim' 'supporting Statement by Head Contractor' 'jurisdictional Error in Adjudication Determination' 'discretion to Withhold Certiorari']
['building and Construction' 'equity' 'administrative Law'] ['validity of Payment Claim' 'multiple Payment Claims for the Same Reference Date' 'withdrawal of Payment Claim' 'supporting Statement by Head Contractor' 'jurisdictional Error in Adjudication Determination' 'discretion to Withhold Certiorari']

Case Brief

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Procedural Posture

Application for Relief in the Nature of Certiorari to Quash an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first defendant served more than one payment claim in respect of the same reference date contrary to s 13(5) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the second payment claim had been withdrawn so that the third payment claim could validly be served.' 'Whether there was compliance with s 17(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether service of a payment claim by a head contractor without the supporting statement required by s 13(7) was invalid or ineffective and deprived the adjudicator of jurisdiction.' 'Whether relief in the nature of certiorari should be withheld on discretionary grounds.']

Ratio Decidendi

The third payment claim related to the same reference date as the second payment claim and the second payment claim had not been withdrawn, so the third payment claim was served in breach of s 13(5) and could not found an adjudication. In addition, none of the payment claims was accompanied by the supporting statement required by s 13(7), which made service ineffective or invalid. Because proper service of a payment claim is an essential precondition to adjudicator jurisdiction, the adjudicator lacked jurisdiction and the determination had to be quashed.

Court Disposition

Adjudication determination quashed; ancillary orders made.

Orders

  • ['The determination of the second defendant made on 6 August 2014 be quashed.' "The first defendant pay the plaintiff's costs of the proceedings." 'No other order as to costs.' "Liberty to apply on five days' notice reserved." 'On completion of the revised reasons the exhibits be handed out.' 'The bank guarantee...