Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413

Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413

No part of the amount claimed by McConnell Dowell was a claim for a progress payment within the meaning of the Security of Payment Act because the contract did not provide reference dates for progress claims after termination and the claimed amounts included elements not corresponding to construction work or supply of related goods or services under the Act. Therefore, the adjudicators had no jurisdiction and their determinations were void.

Parties
Plaintiff: Patrick Stevedores Operations No. 2 Pty Ltd; First Defendant: McConnell Dowell Constructors (Aust) Pty Ltd; Second Defendant: Tim Sullivan; Third Defendant: Richard Nixon
Jurisdiction
Australia
Judgment Date
16 October 2014
Procedural Posture
Principal Judgment / First Instance
Outcome
Declarations granted and orders made in favour of the plaintiff. Both adjudication determinations declared void. Money paid into court to be released to the plaintiff. Costs to be paid by the first defendant.
Legal Topics
Security of Payment, Adjudication Determinations, Jurisdiction of Adjudicator, Contract Termination, Progress Payment Claims, Reference Date, Natural Justice
Building and Construction Security of Payment Adjudication Determinations Jurisdiction of Adjudicator Contract Termination Progress Payment Claims Reference Date Natural Justice

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Parties

Patrick Stevedores Operations No. 2 Pty Ltd

Plaintiff

McConnell Dowell Constructors (Aust) Pty Ltd

First Defendant

Tim Sullivan

Second Defendant

Richard Nixon

Third Defendant

Procedural Posture

Principal Judgment / First Instance

Legal Issues

  1. 1 Whether McConnell Dowell was entitled to serve a payment claim under cl 39A.2 of the contract after termination
  2. 2 Whether McConnell Dowell was entitled to withdraw the first adjudication application and make a new adjudication application under s 26 of the Security of Payment Act
  3. 3 Whether the adjudicators lacked jurisdiction due to the invalidity of the payment claim and reference date

Ratio Decidendi

No part of the amount claimed by McConnell Dowell was a claim for a progress payment within the meaning of the Security of Payment Act because the contract did not provide reference dates for progress claims after termination and the claimed amounts included elements not corresponding to construction work or supply of related goods or services under the Act. Therefore, the adjudicators had no jurisdiction and their determinations were void.

Court Disposition

Declarations granted and orders made in favour of the plaintiff. Both adjudication determinations declared void. Money paid into court to be released to the plaintiff. Costs to be paid by the first defendant.

Orders

  • Declare that the determination made by the third defendant dated 18 August 2014 is void.
  • Declare that the determination made by the second defendant dated 10 September 2014 is void.