Miller v LMG Building Pty Ltd [2023] NSWSC 995

Miller v LMG Building Pty Ltd [2023] NSWSC 995

The Adjudicator committed jurisdictional error by treating material created after the payment schedule as necessarily involving new reasons for withholding payment and refusing to consider it, although Mr Grice's statutory declaration and the supplementary Quest report supported reasons already indicated in the payment schedule. The Adjudicator also committed jurisdictional error by failing to determine for himself whether the work was 90.5 percent complete and what was properly payable, instead choosing between expert reports on overall credibility without addressing the merits of the claim on the material before him.

Jurisdiction
Australia
Judgment Date
23 August 2023
Procedural Posture
Judicial Review of Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing on Summons Filed 24 July 2023
Outcome
The Court held that the adjudication determination must be quashed, the District Court judgment must be set aside, and LMG must repay to Ms Miller the amount received through enforcement with interest; the parties were directed to bring in short minutes of order and any outstanding issues are to be determined on the...
Legal Topics
['security of Payment' 'adjudication Determination' 'jurisdictional Error' 'payment Schedule and Adjudication Response' 'relevant Documentation' 'defective Works' 'progress Claims']
['building and Construction' 'equity' 'administrative Law'] ['security of Payment' 'adjudication Determination' 'jurisdictional Error' 'payment Schedule and Adjudication Response' 'relevant Documentation' 'defective Works' 'progress Claims']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review of Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Principal Judgment After Hearing on Summons Filed 24 July 2023

Legal Issues

  1. 1 ["Whether the Adjudicator committed jurisdictional error by refusing to consider material produced after the payment schedule, including Mr Grice's statutory declaration and the supplementary Quest report." "Whether the Adjudicator failed to perform the statutory task of determining the true merits of LMG's payment claim by resolving conflicting expert reports on credibility rather than making his own assessment of the material."]

Ratio Decidendi

The Adjudicator committed jurisdictional error by treating material created after the payment schedule as necessarily involving new reasons for withholding payment and refusing to consider it, although Mr Grice's statutory declaration and the supplementary Quest report supported reasons already indicated in the payment schedule. The Adjudicator also committed jurisdictional error by failing to determine for himself whether the work was 90.5 percent complete and what was properly payable, instead choosing between expert reports on overall credibility without addressing the merits of the claim on the material before him.

Court Disposition

The Court held that the adjudication determination must be quashed, the District Court judgment must be set aside, and LMG must repay to Ms Miller the amount received through enforcement with interest; the parties were directed to bring in short minutes of order and any outstanding issues are to be determined on the...

Orders

  • ["Direct that within seven days of today's date, the parties bring in short minutes of order to give effect to these reasons for judgment." 'Direct that, if the parties cannot agree on the terms of the short minutes of order, each of the parties within a further seven days provide to my Associate and serve on the...