Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Limited [2019] NSWSC 755

Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Limited [2019] NSWSC 755

RRA was not denied procedural fairness because, read reasonably, the adjudication application disclosed that Tab 7 was incomplete and that Concrete Evidence continued to pursue the variations supported in Tab 8. The incomplete comment in Tab 7, the inconsistency between paragraphs 38 and 40 of Concrete Evidence's submissions, the organised table of contents and supporting material in Tab 8, and submissions referring to variations absent from Tab 7 meant that RRA ought reasonably to have appreciated that the adjudicator might determine all Tab 8 variations. The determination was therefore not void for jurisdictional error, and the proceedings were dismissed.

Jurisdiction
Australia
Judgment Date
21 June 2019
Procedural Posture
Proceedings Seeking a Declaration That an Adjudication Determination Made Under S 22 of the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void, With Ancillary Relief / Principal Judgment
Outcome
Proceedings dismissed; the plaintiff was ordered to pay the first defendant's costs; the money paid into court and interest were ordered to be paid to the first defendant.
Legal Topics
['adjudication Determination' 'security of Payment' 'jurisdictional Error' 'natural Justice' 'procedural Fairness' 'severance of Adjudication Determination']
['building and Construction' 'administrative Law' 'equity Commercial List'] ['adjudication Determination' 'security of Payment' 'jurisdictional Error' 'natural Justice' 'procedural Fairness' 'severance of Adjudication Determination']

Case Brief

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Procedural Posture

Proceedings Seeking a Declaration That an Adjudication Determination Made Under S 22 of the Building and Construction Industry Security of Payment Act 1999 (nsw) Is Void, With Ancillary Relief / Principal Judgment

Legal Issues

  1. 1 ['Whether the adjudicator failed to afford RRA procedural fairness by determining variations referred to in Tab 8 of the adjudication application without inviting further submissions from RRA.' 'Whether any denial of procedural fairness was substantial.' 'Whether Concrete Evidence would be entitled to recover the unaffected part of the adjudicated amount if there had been jurisdictional error.']

Ratio Decidendi

RRA was not denied procedural fairness because, read reasonably, the adjudication application disclosed that Tab 7 was incomplete and that Concrete Evidence continued to pursue the variations supported in Tab 8. The incomplete comment in Tab 7, the inconsistency between paragraphs 38 and 40 of Concrete Evidence's submissions, the organised table of contents and supporting material in Tab 8, and submissions referring to variations absent from Tab 7 meant that RRA ought reasonably to have appreciated that the adjudicator might determine all Tab 8 variations. The determination was therefore not void for jurisdictional error, and the proceedings were dismissed.

Court Disposition

Proceedings dismissed; the plaintiff was ordered to pay the first defendant's costs; the money paid into court and interest were ordered to be paid to the first defendant.

Orders

  • ['The proceedings be dismissed.' "The plaintiff pay the first defendant's costs of the proceedings." 'The sum of $1,191,549.67 paid into court on 8 January 2019, and any interest thereon, be paid to the first defendant.']