Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770

Probuild was not denied procedural fairness because the adjudicator was required to resolve the Payment Claim and Payment Schedule on the grounds raised in the Payment Schedule, and Probuild had not claimed any entitlement to withhold retention. However, judicial review under s 69 of the Supreme Court Act 1970 (NSW) was available because the Security of Payment Act did not clearly exclude review for error of law on the face of the record. The Adjudicator misconstrued clause 42.1(a)(ii) of the Subcontract: liquidated damages accrued from day to day after the date for practical completion, and Probuild did not bear the onus of proving that the delay was Shade Systems' fault. That error of...

Jurisdiction
Australia
Judgment Date
15 June 2016
Procedural Posture
Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) to Quash an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing in the Equity Technology and Construction List
Outcome
Application allowed; determination quashed and remitted for further consideration and determination according to law.
Legal Topics
['security of Payment Adjudication' 'judicial Review' 'procedural Fairness' 'error of Law on the Face of the Record' 'liquidated Damages' 'certiorari']
['building and Construction' 'administrative Law' 'civil Procedure'] ['security of Payment Adjudication' 'judicial Review' 'procedural Fairness' 'error of Law on the Face of the Record' 'liquidated Damages' 'certiorari']

Case Brief

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Procedural Posture

Proceedings Under S 69 of the Supreme Court Act 1970 (nsw) to Quash an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing in the Equity Technology and Construction List

Legal Issues

  1. 1 ['Whether the adjudication determination was void because Probuild was denied procedural fairness when the adjudicator determined an amount greater than the revised claimed amount without deducting retention.' 'Whether judicial review under s 69 of the Supreme Court Act 1970 (NSW) is available for non-jurisdictional error of law on the face of the record in respect of an adjudication determination under the Security of Payment Act.' "Whether the adjudicator made an error of law on the face of the record in rejecting Probuild's claim for liquidated damages under clause 42.1(a)(ii) of the Subcontract."]

Ratio Decidendi

Probuild was not denied procedural fairness because the adjudicator was required to resolve the Payment Claim and Payment Schedule on the grounds raised in the Payment Schedule, and Probuild had not claimed any entitlement to withhold retention. However, judicial review under s 69 of the Supreme Court Act 1970 (NSW) was available because the Security of Payment Act did not clearly exclude review for error of law on the face of the record. The Adjudicator misconstrued clause 42.1(a)(ii) of the Subcontract: liquidated damages accrued from day to day after the date for practical completion, and Probuild did not bear the onus of proving that the delay was Shade Systems' fault. That error of...

Court Disposition

Application allowed; determination quashed and remitted for further consideration and determination according to law.

Orders

  • ['Order that the matter of the adjudication under the Security of Payment Act in respect of the entitlement of Shade Systems to a progress payment under the Payment Claim, as served on Probuild by Shade Systems on 23 December 2015, be removed into the Supreme Court.' 'Order that the Determination, made by the...