Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232

Nazero Group Pty Limited v Top Quality Construction Pty Limited [2015] NSWSC 232

Although s 25(4)(b) did not apply because no adjudication certificate had been filed as a judgment, the Court had discretionary and inherent procedural power to stay the proceedings unless Nazero paid the adjudicated amount into Court. The policy of the Act favours protecting a claimant with an adjudication determination while a respondent seeks to inhibit enforcement, and Nazero remained under a statutory obligation to pay. The post-Chase availability of certiorari for jurisdictional error did not alter the procedural discretion. With no evidence of hardship and despite reasonable prospects of success, it would be manifestly unfair to permit Nazero to pursue the challenge without paying...

Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Proceedings in the Equity Division Technology and Construction List Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Procedural Ruling on Application for Payment Into Court or Stay Pending Final Determination
Outcome
Proceedings stayed unless the plaintiff pays into Court the unpaid portion of the adjudicated amount.
Legal Topics
['security of Payment Adjudication' 'payment Claims and Reference Dates' 'jurisdictional Error' 'payment Into Court as Security' 'stay of Proceedings']
['building and Construction' 'civil Procedure'] ['security of Payment Adjudication' 'payment Claims and Reference Dates' 'jurisdictional Error' 'payment Into Court as Security' 'stay of Proceedings']

Case Brief

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Procedural Posture

Proceedings in the Equity Division Technology and Construction List Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Procedural Ruling on Application for Payment Into Court or Stay Pending Final Determination

Legal Issues

  1. 1 ['Whether, where a respondent to an adjudication determination challenges the determination before any adjudication certificate has been filed as a judgment, the Court should require payment into Court of the unpaid adjudicated amount.' 'Whether the proceedings should be stayed unless the plaintiff pays into Court the unpaid portion of the adjudicated amount.' "Whether the change in approach after Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd affects the Court's discretion to order payment into Court by analogy with s 25(4)(b) of the Building and Construction Industry Security of Payment Act 1999 (NSW)."]

Ratio Decidendi

Although s 25(4)(b) did not apply because no adjudication certificate had been filed as a judgment, the Court had discretionary and inherent procedural power to stay the proceedings unless Nazero paid the adjudicated amount into Court. The policy of the Act favours protecting a claimant with an adjudication determination while a respondent seeks to inhibit enforcement, and Nazero remained under a statutory obligation to pay. The post-Chase availability of certiorari for jurisdictional error did not alter the procedural discretion. With no evidence of hardship and despite reasonable prospects of success, it would be manifestly unfair to permit Nazero to pursue the challenge without paying...

Court Disposition

Proceedings stayed unless the plaintiff pays into Court the unpaid portion of the adjudicated amount.

Orders

  • ['The proceedings be stayed unless the plaintiff pays into Court the unpaid portion of the adjudicated amount.' 'The Court will hear the parties on the appropriate form of orders.']