Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194

Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194

The adjudication determination was vitiated because the material referred to the adjudicator, the material made to the authorised nominating authority, and the material served on Parkview were materially different; Section 3 was not part of the application made within the statutory deadline; and delivery of a USB stick was not service of a copy in writing until the material was accessed. Parkview's adjudication response was therefore served in time, and the adjudicator's disregard of it was contrary to the Act and denied procedural fairness.

Jurisdiction
Australia
Judgment Date
07 March 2017
Procedural Posture
Proceedings to Quash or Declare Void an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing
Outcome
Adjudication determination to be quashed; permanent injunctions to restrain Total from acting upon it.
Legal Topics
['building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Application' 'service of Adjudication Application' 'jurisdictional Error' 'procedural Fairness' 'certiorari' 'injunctions' 'usb Stick Service']
['building and Construction' 'administrative Law' 'equity'] ['building and Construction Industry Security of Payment Act 1999 (nsw)' 'adjudication Application' 'service of Adjudication Application' 'jurisdictional Error' 'procedural Fairness' 'certiorari' 'injunctions' 'usb Stick Service']

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Procedural Posture

Proceedings to Quash or Declare Void an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the adjudicator had jurisdiction where the adjudication application referred to him differed from the application made to the authorised nominating authority.' 'Whether the adjudicator had jurisdiction where the adjudication application served on Parkview was not a copy of the application referred to the adjudicator.' 'Whether delivery of a USB stick containing an adjudication application constituted service of a copy in writing for the purposes of s17(5).' "Whether the adjudicator erred by disregarding Parkview's adjudication response as out of time." 'Whether Parkview was denied procedural fairness by discrepancies in the material before the adjudicator and material served on Parkview.']

Ratio Decidendi

The adjudication determination was vitiated because the material referred to the adjudicator, the material made to the authorised nominating authority, and the material served on Parkview were materially different; Section 3 was not part of the application made within the statutory deadline; and delivery of a USB stick was not service of a copy in writing until the material was accessed. Parkview's adjudication response was therefore served in time, and the adjudicator's disregard of it was contrary to the Act and denied procedural fairness.

Court Disposition

Adjudication determination to be quashed; permanent injunctions to restrain Total from acting upon it.

Orders

  • ['An order in the nature of certiorari quashing the adjudication determination of Kenneth Spain dated 9 December 2016 will be made.' 'Permanent injunctions restraining Total from acting upon the adjudication determination will be made.' 'The parties are to bring in short minutes.' 'The Court will hear the parties on...