Parkview Constructions Pty Ltd v Sydney Civil Excavations Pty Ltd & anor [2009] NSWSC 61

Parkview Constructions Pty Ltd v Sydney Civil Excavations Pty Ltd & anor [2009] NSWSC 61

The adjudication determination was not invalid. Section 13(3)(a) permitted inclusion in a payment claim of liability under s 27(2A), even if the loss could also be characterised as damages. The adjudication application's reference to s 27(2A) was within the scope of the payment claim because it explained the statutory basis of the already identified loss of income claim; in any event, the scope of the payment claim was for the adjudicator to determine. The adjudicator did not allow the 20% margin claim by default, but was entitled on the material before him to accept Sydney Civil's contention that it applied 20% overhead and margin to all projects.

Jurisdiction
Australia
Judgment Date
19 February 2009
Procedural Posture
Proceedings Seeking a Declaration That an Adjudication Determination Under the (nsw) Building and Construction Industry Security of Payment Act 1999 Was Void / Principal Judgment
Outcome
Proceedings dismissed with costs.
Legal Topics
['security of Payment Adjudication' 'judicial Review of Adjudication Determinations' 'progress Payments' 'section 27(2 A) Loss or Expenses' 'payment Claim Scope' "adjudicator's Evaluation of Quantum"]
['building and Construction' 'administrative Law' 'equity'] ['security of Payment Adjudication' 'judicial Review of Adjudication Determinations' 'progress Payments' 'section 27(2 A) Loss or Expenses' 'payment Claim Scope' "adjudicator's Evaluation of Quantum"]

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 That an Adjudication Determination Under the (nsw) Building and Construction Industry Security of Payment Act 1999 Was Void / Principal Judgment

Legal Issues

  1. 1 ['Whether inclusion of $149,362.50 for loss of income under s 27(2A) invalidated the adjudication determination because it was damages for repudiation rather than a progress payment for construction work.' 'Whether Sydney Civil could rely on s 27(2A) in its adjudication application when the payment claim described the item only as loss of income.' 'Whether the adjudicator failed properly to evaluate the s 27(2A) claim and instead allowed it by default.']

Ratio Decidendi

The adjudication determination was not invalid. Section 13(3)(a) permitted inclusion in a payment claim of liability under s 27(2A), even if the loss could also be characterised as damages. The adjudication application's reference to s 27(2A) was within the scope of the payment claim because it explained the statutory basis of the already identified loss of income claim; in any event, the scope of the payment claim was for the adjudicator to determine. The adjudicator did not allow the 20% margin claim by default, but was entitled on the material before him to accept Sydney Civil's contention that it applied 20% overhead and margin to all projects.

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['The proceedings be dismissed with costs.']