Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121

Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121

The supporting statement did not comply with ss 13(7) and 13(9) because its declaration was made before the payment claim to which it purported to relate, so it could not validly declare payment of amounts due and payable in relation to that payment claim. Because no valid payment claim was served, the machinery of the Act was not successfully invoked and the adjudication determination was void. The adjudicator's acceptance was actually notified to Mt Lewis on 23 February 2017, so the determination made on 10 March 2017 was out of time; although that lateness did not itself make the determination void, s 29(4) meant the adjudicator was not entitled to any fees or expenses and had no power...

Jurisdiction
Australia
Judgment Date
24 August 2017
Procedural Posture
Challenge to the Validity of an Adjudication Determination Under the Building and Construction Industry (security of Payment) Act 1999 (nsw) / Principal Judgment
Outcome
Adjudication determination declared void; adjudicator not entitled to fees or expenses; determination that Mt Lewis pay the adjudicator's fees and expenses quashed.
Legal Topics
['validity of Payment Claim' 'supporting Statement by Head Contractor' 'adjudication Determination' 'time for Adjudication Determination' 'service and Notification' "adjudicator's Fees and Expenses"]
['building and Construction' 'security of Payment' 'equity Technology and Construction List' 'judicial Review'] ['validity of Payment Claim' 'supporting Statement by Head Contractor' 'adjudication Determination' 'time for Adjudication Determination' 'service and Notification' "adjudicator's Fees and Expenses"]

Case Brief

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Procedural Posture

Challenge to the Validity of an Adjudication Determination Under the Building and Construction Industry (security of Payment) Act 1999 (nsw) / Principal Judgment

Legal Issues

  1. 1 ["Whether Metricon's payment claim was accompanied by a supporting statement complying with ss 13(7) and 13(9) of the Building and Construction Industry (Security of Payment) Act 1999 (NSW) and the Regulation." 'Whether a supporting statement declaration could validly be made before the payment claim to which it purported to relate.' 'Whether the payment claim effectively invoked the procedures under the Act.' "Whether notice of the adjudicator's acceptance of appointment was effective when actually received by Mt Lewis through its solicitor, although not by a method expressly provided for by s 31." 'Whether the adjudication determination was made outside the time prescribed by s 21(3)(a) and, if so, whether that made it void.' 'Whether s 29(4) disentitled the adjudicator from fees and expenses.']

Ratio Decidendi

The supporting statement did not comply with ss 13(7) and 13(9) because its declaration was made before the payment claim to which it purported to relate, so it could not validly declare payment of amounts due and payable in relation to that payment claim. Because no valid payment claim was served, the machinery of the Act was not successfully invoked and the adjudication determination was void. The adjudicator's acceptance was actually notified to Mt Lewis on 23 February 2017, so the determination made on 10 March 2017 was out of time; although that lateness did not itself make the determination void, s 29(4) meant the adjudicator was not entitled to any fees or expenses and had no power...

Court Disposition

Adjudication determination declared void; adjudicator not entitled to fees or expenses; determination that Mt Lewis pay the adjudicator's fees and expenses quashed.

Orders

  • ['The adjudication determination is void.' 'The adjudicator is not entitled to be paid any fees or expenses in connection with the determination.' "The second defendant's determination that Mt Lewis pay his fees and expenses is quashed." 'The parties are to bring in Short Minutes reflecting the outcome.' 'The monies...