Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors [2006] NSWSC 13

Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors [2006] NSWSC 13

The adjudicator’s determination was void because he failed to perform the basic and essential requirement of adjudicating the payment claim on its merits, namely, by not determining whether the construction work the subject of the claim had been performed and what its value was, but rather simply allowed the claim after rejecting the respondent’s submissions. This is a jurisdictional error or failure to comply with an essential requirement under the Building and Construction Industry Security of Payment Act 1999 (NSW), rendering the determination void.

Jurisdiction
Australia
Judgment Date
31 January 2006
Procedural Posture
Judicial Review – Supreme Court – Equity Division / Final Judgment
Outcome
Adjudicator's determination declared void; injunctions issued; no order as to costs (parties to bear own costs); leave reserved for costs application.
Legal Topics
['building and Construction Contracts' 'payment Claims' 'adjudication' 'judicial Review' 'natural Justice' 'validity of Determinations' 'service of Documents']
['contracts' 'construction Law' 'corporations'] ['building and Construction Contracts' 'payment Claims' 'adjudication' 'judicial Review' 'natural Justice' 'validity of Determinations' 'service of Documents']

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Procedural Posture

Judicial Review – Supreme Court – Equity Division / Final Judgment

Legal Issues

  1. 1 ["Whether the adjudicator's determination was void due to failure to address the merits of the payment claim as required under the Building and Construction Industry Security of Payment Act 1999 (NSW)" 'Whether the payment claim was made within 12 months of performance of the latest construction work to which it related' 'Whether there was insufficient specificity in the payment claim' 'Whether the adjudication application was validly served on Finmore Holdings Pty Ltd, particularly after the appointment of a receiver' 'Whether the adjudicator failed to consider relevant submissions contained in the adjudication response']

Ratio Decidendi

The adjudicator’s determination was void because he failed to perform the basic and essential requirement of adjudicating the payment claim on its merits, namely, by not determining whether the construction work the subject of the claim had been performed and what its value was, but rather simply allowed the claim after rejecting the respondent’s submissions. This is a jurisdictional error or failure to comply with an essential requirement under the Building and Construction Industry Security of Payment Act 1999 (NSW), rendering the determination void.

Court Disposition

Adjudicator's determination declared void; injunctions issued; no order as to costs (parties to bear own costs); leave reserved for costs application.

Orders

  • ["Declare that the adjudicator's determination of 2 November 2005 (reference ADJ 10151) is void." 'The First Defendant (Soliman & Sons Pty Ltd) is permanently restrained from requesting the authorised nominating authority to provide an adjudication certificate.' 'The Second Defendant (Institute of Arbitrators &...