Pheonix Builders Pty Ltd v Deca Australia Pty Ltd [2021] NSWSC 581

Pheonix Builders Pty Ltd v Deca Australia Pty Ltd [2021] NSWSC 581

Although there was a serious issue to be tried about whether a construction contract existed when the payment claim was issued, the plaintiff's case for interim relief was weakened because the jurisdictional issue had been put to the adjudicator in a different form and then withdrawn. Having regard to that weakness, the statutory policy of prompt payment, the nature of the plaintiff's asserted counterclaim, and the balance of convenience including Deca's cash flow position, the Court refused to stay enforcement of the adjudicator's determination.

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Equity Commercial List; Application for Interim Relief Restraining Steps to Enforce an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Interlocutory Application for Interim Relief
Outcome
Interim relief refused.
Legal Topics
['interim Injunction' 'adjudication Determination' 'jurisdictional Error' 'existence of Construction Contract' 'adjudication Certificate' 'balance of Convenience' 'insolvency Risk']
['building and Construction' 'security of Payment' 'equity' 'commercial List Procedure'] ['interim Injunction' 'adjudication Determination' 'jurisdictional Error' 'existence of Construction Contract' 'adjudication Certificate' 'balance of Convenience' 'insolvency Risk']

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Procedural Posture

Equity Commercial List; Application for Interim Relief Restraining Steps to Enforce an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Interlocutory Application for Interim Relief

Legal Issues

  1. 1 ['Whether interim relief should be granted restraining Deca Australia Pty Ltd from requesting, serving or filing an adjudication certificate and restraining Australian Solutions Centre from issuing an adjudication certificate in relation to the Determination.' 'Whether there was a serious issue to be tried that the adjudicator lacked jurisdiction because no construction contract existed when the payment claim was issued.' "Whether the plaintiff's withdrawal before the adjudicator of jurisdictional challenges undermined the strength of its case for interlocutory relief." 'Whether the balance of convenience favoured a stay given alleged cash flow difficulties and insolvency risk of Deca Australia Pty Ltd.']

Ratio Decidendi

Although there was a serious issue to be tried about whether a construction contract existed when the payment claim was issued, the plaintiff's case for interim relief was weakened because the jurisdictional issue had been put to the adjudicator in a different form and then withdrawn. Having regard to that weakness, the statutory policy of prompt payment, the nature of the plaintiff's asserted counterclaim, and the balance of convenience including Deca's cash flow position, the Court refused to stay enforcement of the adjudicator's determination.

Court Disposition

Interim relief refused.

Orders

  • ["Refuse interim relief staying enforcement of the adjudicator's determination." 'Decline to make the orders sought.']