Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911

Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd [2016] NSWSC 1911

There was a serious factual issue to be tried about whether the adjudication application was served on 9 or 10 November 2016, and that issue would likely be decisive of Parkview's procedural fairness challenge. Although the Act's policy favours prompt payment, the balance of convenience favoured interlocutory restraint because Parkview would pay the amount into Court, the factual issue was simple and could be prepared and heard quickly, and any prejudice to Windows would not likely be substantial while the sum remained secured.

Jurisdiction
Australia
Judgment Date
22 December 2016
Procedural Posture
Equity Proceeding Seeking Interlocutory Relief Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Interlocutory Injunction Application in the Duty Vacation List
Outcome
Interlocutory injunction granted on terms that Parkview pay $570,420.80 into Court by 30 December 2016; directions made for preparation of the proceedings for hearing.
Legal Topics
['statutory Progress Payments' 'adjudication Determination' 'procedural Fairness' 'service of Adjudication Application' 'interlocutory Injunction' 'balance of Convenience']
['contracts' 'building and Construction' 'equity'] ['statutory Progress Payments' 'adjudication Determination' 'procedural Fairness' 'service of Adjudication Application' 'interlocutory Injunction' 'balance of Convenience']

Case Brief

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Procedural Posture

Equity Proceeding Seeking Interlocutory Relief Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Interlocutory Injunction Application in the Duty Vacation List

Legal Issues

  1. 1 ['Whether there was a serious question to be tried as to whether the adjudication application was served on 10 November 2016 rather than 9 November 2016.' "Whether the adjudicator denied Parkview procedural fairness by refusing to consider Parkview's adjudication response as out of time." 'Whether service of an adjudication application by USB stick satisfied the requirement that the application be in writing.' 'Whether the balance of convenience justified restraining Total Lifestyle Windows Pty Ltd from obtaining, filing, enforcing or relying on an adjudication certificate pending final hearing.']

Ratio Decidendi

There was a serious factual issue to be tried about whether the adjudication application was served on 9 or 10 November 2016, and that issue would likely be decisive of Parkview's procedural fairness challenge. Although the Act's policy favours prompt payment, the balance of convenience favoured interlocutory restraint because Parkview would pay the amount into Court, the factual issue was simple and could be prepared and heard quickly, and any prejudice to Windows would not likely be substantial while the sum remained secured.

Court Disposition

Interlocutory injunction granted on terms that Parkview pay $570,420.80 into Court by 30 December 2016; directions made for preparation of the proceedings for hearing.

Orders

  • ['Upon the plaintiff giving the usual undertaking as to damages, on the plaintiff paying the sum of $570,420.80 into Court by 30 December 2016, the first defendant be restrained, until further order, from applying for an adjudication certificate from Australian Building & Construction Dispute Resolution Service or...