Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors [2005] NSWSC 378

Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors [2005] NSWSC 378

Because service under the relevant provisions of the Act required actual receipt, and the unchallenged evidence showed that Pacific General did not receive the notice of acceptance until 18 March 2005 and Finmore did not receive it earlier, the adjudicator wrongly treated the plaintiffs as out of time and determined the application without giving them an opportunity to file an adjudication response. That involved failure to comply with a basic and essential requirement of the Act and/or denial of natural justice, so the plaintiffs were entitled to declaratory and injunctive relief.

Jurisdiction
Australia
Judgment Date
14 April 2005
Procedural Posture
Proceedings Seeking a Declaration and Injunctive Relief Restraining Enforcement of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Ex Tempore Judgment on Plaintiffs' Summons
Outcome
Plaintiffs granted declaratory and injunctive relief; first defendant ordered to pay the plaintiffs' costs; orders suspended until the submitting appearance was provided.
Legal Topics
['adjudication Determination' 'service of Notice of Acceptance' 'adjudication Response Time Limits' 'natural Justice' 'injunctive Relief']
['building and Construction' 'security of Payment' 'equity'] ['adjudication Determination' 'service of Notice of Acceptance' 'adjudication Response Time Limits' 'natural Justice' 'injunctive Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Proceedings Seeking a Declaration and Injunctive Relief Restraining Enforcement of an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Ex Tempore Judgment on Plaintiffs' Summons

Legal Issues

  1. 1 ["Whether the adjudicator's notice of acceptance was served on or received by the plaintiffs on 11 March 2005 or later" 'Whether the adjudicator wrongly concluded that the plaintiffs were out of time to lodge an adjudication response' 'Whether a failure to serve or receive the notice of acceptance was a failure to comply with a basic and essential requirement of the Act or a denial of natural justice' "Whether clause 21 of the construction contract deemed service or receipt despite the Act's requirements" 'Whether discretionary grounds justified refusing relief']

Ratio Decidendi

Because service under the relevant provisions of the Act required actual receipt, and the unchallenged evidence showed that Pacific General did not receive the notice of acceptance until 18 March 2005 and Finmore did not receive it earlier, the adjudicator wrongly treated the plaintiffs as out of time and determined the application without giving them an opportunity to file an adjudication response. That involved failure to comply with a basic and essential requirement of the Act and/or denial of natural justice, so the plaintiffs were entitled to declaratory and injunctive relief.

Court Disposition

Plaintiffs granted declaratory and injunctive relief; first defendant ordered to pay the plaintiffs' costs; orders suspended until the submitting appearance was provided.

Orders

  • ['The plaintiffs are entitled to a declaration in accordance with prayer 1 of the summons and to orders in accordance with prayers 2 and 3.' "The first defendant is to pay the plaintiffs' costs of the proceedings." 'The orders are suspended until the submitting appearance is provided to the Court.' 'The...