McNab Building Services Pty Ltd v Demex Pty Ltd (No 2) [2022] NSWSC 1496

McNab Building Services Pty Ltd v Demex Pty Ltd (No 2) [2022] NSWSC 1496

The adjudicator did consider McNab's payment schedule, adjudication response, evidence and set-off submission. Read as a whole, the determination showed that the finding of complete agreement followed from prior findings that Demex completed the works, that the September 2021 payment schedule certified the works as 100% complete and valued as claimed, and that McNab could not revoke that position. Any error in those conclusions was not shown to be jurisdictional error, and no denial of procedural fairness was established.

Jurisdiction
Australia
Judgment Date
04 November 2022
Procedural Posture
Application for a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void / Principal Judgment in the Equity Technology and Construction List
Outcome
Summons dismissed with costs.
Legal Topics
['adjudication Determination' 'security of Payment' 'jurisdictional Error' 'mandatory Considerations' 'procedural Fairness' 'valuation of Construction Work' 'set Off']
['building and Construction' 'administrative Law'] ['adjudication Determination' 'security of Payment' 'jurisdictional Error' 'mandatory Considerations' 'procedural Fairness' 'valuation of Construction Work' 'set Off']

Case Brief

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Procedural Posture

Application for a Declaration That an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void / Principal Judgment in the Equity Technology and Construction List

Legal Issues

  1. 1 ["Whether the adjudicator failed to take into consideration the matters required by s 22(2) of the Building and Construction Industry Security of Payment Act 1999 (NSW), including McNab's payment schedule and submissions." 'Whether the adjudicator denied procedural fairness by finding that the parties were in complete agreement as to completion and value of the works.' 'Whether the adjudicator failed to value the work the subject of the payment claim.' "Whether the adjudicator failed to consider McNab's claimed set-off of $449,157.26."]

Ratio Decidendi

The adjudicator did consider McNab's payment schedule, adjudication response, evidence and set-off submission. Read as a whole, the determination showed that the finding of complete agreement followed from prior findings that Demex completed the works, that the September 2021 payment schedule certified the works as 100% complete and valued as claimed, and that McNab could not revoke that position. Any error in those conclusions was not shown to be jurisdictional error, and no denial of procedural fairness was established.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Dismiss Prayers 7 to 11 of the Summons.' 'Discharge the restraint on the first defendant from taking any steps to enforce the adjudication determination, being Order 2 made on 28 July 2022.' "Order the plaintiff to pay the first defendant's costs of the proceedings."]