Chase Oyster Bar v Hamo Industries [2010] NSWSC 332

Chase Oyster Bar v Hamo Industries [2010] NSWSC 332

The complete payment claim was served by post and, applying the contract or alternatively s 76 of the Interpretation Act 1987 (NSW), service occurred on 31 December 2009. The contractual due date for payment was 13 January 2010. On those findings, the s 17(2)(a) notice served on 11 February 2010 was outside the statutory time limit, so it was not open to the adjudicator to conclude that the notice had been served in accordance with the Act's time requirements. The separate questions were answered accordingly, and the Kirk issue was to be referred to the Court of Appeal.

Jurisdiction
Australia
Judgment Date
21 April 2010
Procedural Posture
Challenge to Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Preliminary Questions and Procedural Ruling in the Equity Division Technology & Construction List
Outcome
Separate questions answered; the Court found that the s 17(2)(a) notice was served outside time and that the adjudicator erred, with the Kirk issue to be referred to the Court of Appeal and costs reserved.
Legal Topics
['security of Payment Adjudication' 'payment Claims' 'service of Notices' 'jurisdictional Error' 'referral to Court of Appeal' 'preliminary Questions']
['building and Construction' 'civil Procedure' 'administrative Law'] ['security of Payment Adjudication' 'payment Claims' 'service of Notices' 'jurisdictional Error' 'referral to Court of Appeal' 'preliminary Questions']

Case Brief

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Procedural Posture

Challenge to Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Preliminary Questions and Procedural Ruling in the Equity Division Technology & Construction List

Legal Issues

  1. 1 ['Whether the adjudicator was entitled to proceed on the basis that the construction contract was wholly in writing or that its relevant terms were written.' "What was the date of service on the plaintiff of the first defendant's payment claim." 'What was the due date for payment of the progress payment claimed by the payment claim.' "Whether the first defendant's notice under s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) was served within time." 'Whether it was open to the adjudicator to conclude that the s 17(2)(a) notice had been served in accordance with the time requirements of the Act.' 'Whether the reasoning in Brodyn Pty Ltd v Davenport could stand in light of Kirk v Industrial Relations Commission of New South Wales.']

Ratio Decidendi

The complete payment claim was served by post and, applying the contract or alternatively s 76 of the Interpretation Act 1987 (NSW), service occurred on 31 December 2009. The contractual due date for payment was 13 January 2010. On those findings, the s 17(2)(a) notice served on 11 February 2010 was outside the statutory time limit, so it was not open to the adjudicator to conclude that the notice had been served in accordance with the Act's time requirements. The separate questions were answered accordingly, and the Kirk issue was to be referred to the Court of Appeal.

Court Disposition

Separate questions answered; the Court found that the s 17(2)(a) notice was served outside time and that the adjudicator erred, with the Kirk issue to be referred to the Court of Appeal and costs reserved.

Orders

  • ["I make an order in accordance with the document initialled by me and dated today's date." 'I direct that the answers to the separate questions be recorded.' 'I direct the plaintiff to submit to my associate by 5pm on 22 April 2010 draft orders and directions covering, among other things, the terms of the issue to...