Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534

Ku-Ring-Gai Council v Ichor Constructions Pty Ltd [2014] NSWSC 1534

While there was no issue estoppel because the first adjudicator explicitly refrained from determining the delay damages for want of sufficient evidence, Ichor's attempt to re-agitate the same delay damages claim in a second adjudication application, now supported by additional evidence specifically addressing deficiencies identified by the first adjudicator, constitutes an abuse of process under the Act. Allowing this would require the Council to defend the same claim a second time, contrary to the proper processes of the Act.

Jurisdiction
Australia
Judgment Date
05 November 2014
Procedural Posture
Principal Judgment / Application for Restraining Order Against Further Adjudication Under the Building and Construction Industry Security of Payment Act 1999
Outcome
Application granted. The defendants are restrained from proceeding with the second adjudication application dated 27 August 2014.
Legal Topics
['adjudication Applications' 'abuse of Process' 'issue Estoppel' 'delay Damages' 'security of Payment']
['building and Construction' 'equity'] ['adjudication Applications' 'abuse of Process' 'issue Estoppel' 'delay Damages' 'security of Payment']

Case Brief

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Procedural Posture

Principal Judgment / Application for Restraining Order Against Further Adjudication Under the Building and Construction Industry Security of Payment Act 1999

Legal Issues

  1. 1 ['Whether making a further adjudication application for the same delay damages constitutes an issue estoppel or is an abuse of process under the Building and Construction Industry Security of Payment Act 1999']

Ratio Decidendi

While there was no issue estoppel because the first adjudicator explicitly refrained from determining the delay damages for want of sufficient evidence, Ichor's attempt to re-agitate the same delay damages claim in a second adjudication application, now supported by additional evidence specifically addressing deficiencies identified by the first adjudicator, constitutes an abuse of process under the Act. Allowing this would require the Council to defend the same claim a second time, contrary to the proper processes of the Act.

Court Disposition

Application granted. The defendants are restrained from proceeding with the second adjudication application dated 27 August 2014.

Orders

  • ['The defendants be restrained from proceeding with adjudication application of 27 August 2014.']