Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2016] NSWSC 462

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2016] NSWSC 462

There was no denial of procedural fairness because Probuild itself put in issue whether DDI had been granted or was entitled to any extension of time, including under cl 41.9, as part of its liquidated damages set-off claim. DDI denied the reasonableness of that claim and relied on access difficulties and extensive variations directed by Probuild after the original Date for Practical Completion. The adjudicator's conclusion that Probuild unreasonably failed to grant additional time addressed an issue raised by the parties, and Probuild had a reasonable opportunity to put its case. Probuild could not rely on an alternative unliquidated damages claim because it had not raised that as a...

Jurisdiction
Australia
Judgment Date
20 April 2016
Procedural Posture
Application Under S 69 of the Supreme Court Act 1970 (nsw) to Quash an Adjudication Determination Made Under Pt 3, Div 2 of the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment
Outcome
Summons dismissed with costs; amount paid into Court to be paid to the first defendant.
Legal Topics
['procedural Fairness' 'natural Justice' 'security of Payment Adjudication' 'liquidated Damages' 'extension of Time' 'set Off' 'supervisory Jurisdiction']
['administrative Law' 'building and Construction' 'equity'] ['procedural Fairness' 'natural Justice' 'security of Payment Adjudication' 'liquidated Damages' 'extension of Time' 'set Off' 'supervisory Jurisdiction']

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Procedural Posture

Application Under S 69 of the Supreme Court Act 1970 (nsw) to Quash an Adjudication Determination Made Under Pt 3, Div 2 of the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment

Legal Issues

  1. 1 ['Whether the adjudicator denied Probuild procedural fairness by rejecting its liquidated damages set-off claim on bases not contended for or notified to the parties.' "Whether the adjudicator's reasoning that it was unreasonable for Probuild not to grant DDI additional time under cl 41.9 was within the issues raised by the payment schedule and adjudication submissions." 'Whether Probuild was entitled to advance an alternative claim for unliquidated damages for delay before the adjudicator.']

Ratio Decidendi

There was no denial of procedural fairness because Probuild itself put in issue whether DDI had been granted or was entitled to any extension of time, including under cl 41.9, as part of its liquidated damages set-off claim. DDI denied the reasonableness of that claim and relied on access difficulties and extensive variations directed by Probuild after the original Date for Practical Completion. The adjudicator's conclusion that Probuild unreasonably failed to grant additional time addressed an issue raised by the parties, and Probuild had a reasonable opportunity to put its case. Probuild could not rely on an alternative unliquidated damages claim because it had not raised that as a...

Court Disposition

Summons dismissed with costs; amount paid into Court to be paid to the first defendant.

Orders

  • ['Summons dismissed.' "Plaintiff pay first defendant's costs of the proceedings." 'Amount of $495,473.20 paid into Court by the plaintiff be paid to the first defendant.']