Paynter Dixon Constructions Pty Limited v JF & CG Tilston Pty Limited and Anor [2003] NSWSC 869

Paynter Dixon Constructions Pty Limited v JF & CG Tilston Pty Limited and Anor [2003] NSWSC 869

The adjudicator was validly appointed because the payment claim included a claim for construction work under a construction contract, the plaintiff served a payment schedule proposing less than the amount claimed, the first defendant applied for adjudication, and the adjudicator accepted the application. The inclusion of a contentious damages or loss of profits component did not invalidate the payment claim. What amount, if any, was payable was for the adjudicator to determine under s 22 of the Act, so the plaintiff was not entitled to a permanent injunction or declarations limiting the adjudication.

Jurisdiction
Australia
Judgment Date
25 September 2003
Procedural Posture
Application for Declarations and a Permanent Injunction Restraining an Adjudication Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Final Determination of Amended Summons After Interlocutory Injunction and Stay of Adjudication
Outcome
Amended Summons dismissed; interlocutory injunction discharged; stay on adjudication lifted.
Legal Topics
['security of Payment' 'progress Payments' 'payment Claim Validity' 'adjudicator Jurisdiction' 'injunction Restraining Adjudication']
['construction Law' 'equity' 'statutory Adjudication'] ['security of Payment' 'progress Payments' 'payment Claim Validity' 'adjudicator Jurisdiction' 'injunction Restraining Adjudication']

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Procedural Posture

Application for Declarations and a Permanent Injunction Restraining an Adjudication Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Final Determination of Amended Summons After Interlocutory Injunction and Stay of Adjudication

Legal Issues

  1. 1 ['Whether the second defendant was validly appointed as adjudicator under the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether a payment claim that included an agreed claim for construction work and a contentious claim for damages or loss of profits was invalid under the Act.' 'Whether the Court should permanently restrain the adjudication or make declarations limiting how the adjudication may proceed.' 'Whether payment of the amount claimed for the identified construction work meant there was no matter for the adjudicator to determine.']

Ratio Decidendi

The adjudicator was validly appointed because the payment claim included a claim for construction work under a construction contract, the plaintiff served a payment schedule proposing less than the amount claimed, the first defendant applied for adjudication, and the adjudicator accepted the application. The inclusion of a contentious damages or loss of profits component did not invalidate the payment claim. What amount, if any, was payable was for the adjudicator to determine under s 22 of the Act, so the plaintiff was not entitled to a permanent injunction or declarations limiting the adjudication.

Court Disposition

Amended Summons dismissed; interlocutory injunction discharged; stay on adjudication lifted.

Orders

  • ['The interlocutory injunction is discharged.' 'The stay on the adjudication process is lifted as and from midnight on 25 September 2003.' 'The Amended Summons is dismissed.' "If the parties are unable to agree upon a costs order, argument will be heard on a date to be fixed by the parties making contact with the...