Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483

Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483

Qube succeeded in showing that the adjudicator committed jurisdictional errors in failing to consider certain objections and in making mathematical errors affecting the outcome of specific claims; those components of the adjudication determinations (and the associated sums) were set aside and the determinations were reduced accordingly. Costs were ordered to reflect success and failure on individual claims, with general costs allocated in favour of Qube to the extent of its substantial success, but Qube required to pay Martinus for costs solely referable to claims where Qube failed.

Parties
Plaintiff: Qube RE Services (No 2) Pty Limited; First Defendant: Martinus Rail Pty Limited; Second Defendant: John Tuhtan
Jurisdiction
Australia
Judgment Date
20 November 2024
Procedural Posture
Judicial Review and Enforcement of Adjudication Determinations (equity Commercial List) / Post Judgment Review With Costs Orders
Outcome
Partially allowed (Qube succeeding on some challenges to the determinations, with partial setting aside and variation of the adjudicated amounts and associated judgments; costs awarded on a claim-by-claim, apportioned basis)
Legal Topics
Security of Payment Act Adjudication, Jurisdictional Error, Costs, Enforcement of Adjudication, Calculation Errors in Adjudication
Building and Construction Civil Procedure Administrative Law Security of Payment Act Adjudication Jurisdictional Error Costs Enforcement of Adjudication Calculation Errors in Adjudication

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Parties

Qube RE Services (No 2) Pty Limited

Plaintiff

Martinus Rail Pty Limited

First Defendant

John Tuhtan

Second Defendant

Procedural Posture

Judicial Review and Enforcement of Adjudication Determinations (equity Commercial List) / Post Judgment Review With Costs Orders

Legal Issues

  1. 1 Whether the adjudicator failed to consider submissions and objections duly made by the respondent (Qube) in the adjudication process under the Building and Construction Industry (Security of Payment) Act 1999 (NSW)
  2. 2 Whether mathematical or calculation errors amount to jurisdictional error and invalidate the determination
  3. 3 Appropriate basis for costs orders where there is partial success in judicial review of adjudication determinations

Ratio Decidendi

Qube succeeded in showing that the adjudicator committed jurisdictional errors in failing to consider certain objections and in making mathematical errors affecting the outcome of specific claims; those components of the adjudication determinations (and the associated sums) were set aside and the determinations were reduced accordingly. Costs were ordered to reflect success and failure on individual claims, with general costs allocated in favour of Qube to the extent of its substantial success, but Qube required to pay Martinus for costs solely referable to claims where Qube failed.

Court Disposition

Partially allowed (Qube succeeding on some challenges to the determinations, with partial setting aside and variation of the adjudicated amounts and associated judgments; costs awarded on a claim-by-claim, apportioned basis)

Orders

  • Pursuant to s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW), the INTS determination is set aside in the amount over and above $17,247,488.19 including GST, and confirmed for that sum.
  • The ISRA determination is set aside in the amount over and above $6,936,389.69 including GST, and confirmed for that sum.