Owners Strata Plan 61172 v Stratabuild Pty Ltd (No 2) [2011] NSWSC 1568

Owners Strata Plan 61172 v Stratabuild Pty Ltd (No 2) [2011] NSWSC 1568

The adjudication process under the Building and Construction Industry Security of Payment Act 1999 does not constitute the exercise of the powers of a 'court' as required by s 6 of the Suitors' Fund Act 1951. The adjudicator is not appointed in a manner considered appropriate for a 'court', does not have judicial powers or procedures, there is no obligation under the Act for legal qualifications, and the process lacks elements such as public hearing and power to compel or enforce. Accordingly, an adjudicator's determination is not a 'decision of a court', and so the application for an indemnity certificate is dismissed.

Jurisdiction
Australia
Judgment Date
19 December 2011
Procedural Posture
Application for Indemnity Certificate / Post Judgment/costs Application
Outcome
Application for indemnity certificate dismissed
Legal Topics
['indemnity Certificates' "suitors' Fund Act" "whether an Adjudicator Is a 'court'" 'building and Construction Industry Security of Payment Act']
['costs' 'civil Procedure'] ['indemnity Certificates' "suitors' Fund Act" "whether an Adjudicator Is a 'court'" 'building and Construction Industry Security of Payment Act']

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Procedural Posture

Application for Indemnity Certificate / Post Judgment/costs Application

Legal Issues

  1. 1 ["Whether a Supreme Court review of an adjudicator's decision is an 'appeal' for the purposes of the Suitors' Fund Act 1951" "Whether a determination by an adjudicator under the Building and Construction Industry Security of Payment Act 1999 is a 'decision of a court' for s 6 of the Suitors' Fund Act" "Effect of applicant's liquidation on grant of indemnity certificate"]

Ratio Decidendi

The adjudication process under the Building and Construction Industry Security of Payment Act 1999 does not constitute the exercise of the powers of a 'court' as required by s 6 of the Suitors' Fund Act 1951. The adjudicator is not appointed in a manner considered appropriate for a 'court', does not have judicial powers or procedures, there is no obligation under the Act for legal qualifications, and the process lacks elements such as public hearing and power to compel or enforce. Accordingly, an adjudicator's determination is not a 'decision of a court', and so the application for an indemnity certificate is dismissed.

Court Disposition

Application for indemnity certificate dismissed

Orders

  • ["The defendant's application for an indemnity certificate pursuant to s 6 of the Suitors' Fund Act 1951 is dismissed." 'No order as to costs.']