The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635

The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635

The first defendant has exhausted its statutory entitlement to claim delay costs under the Act; the second claim seeks in substance to re-agitate previously adjudicated claims, which constitutes an abuse of process and an impermissible use of the adjudication machinery. The Court therefore has jurisdiction to restrain such conduct.

Parties
Plaintiff: The University of Sydney; First Defendant: Cadence Australia Pty Limited; Second Defendant: Helen Durham
Jurisdiction
Australia
Judgment Date
15 July 2009
Procedural Posture
Equity Proceeding / Judgment on Interlocutory Injunctive Relief
Outcome
Plaintiff's application granted
Legal Topics
Payment Claim Adjudication, Issue Estoppel, Abuse of Process, Security of Payment
Building and Construction Law Contract Law Payment Claim Adjudication Issue Estoppel Abuse of Process Security of Payment

Case Brief

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Parties

The University of Sydney

Plaintiff

Cadence Australia Pty Limited

First Defendant

Helen Durham

Second Defendant

Procedural Posture

Equity Proceeding / Judgment on Interlocutory Injunctive Relief

Legal Issues

  1. 1 Whether the first defendant can re-agitate claims previously determined under an adjudication determination
  2. 2 Whether the second payment claim constitutes an impermissible abuse of process under the Building and Construction Industry Security of Payment Act 1999 (NSW)
  3. 3 Applicability of issue estoppel to adjudication determinations

Ratio Decidendi

The first defendant has exhausted its statutory entitlement to claim delay costs under the Act; the second claim seeks in substance to re-agitate previously adjudicated claims, which constitutes an abuse of process and an impermissible use of the adjudication machinery. The Court therefore has jurisdiction to restrain such conduct.

Court Disposition

Plaintiff's application granted

Orders

  • The first defendant is to withdraw the adjudication application dated 18 June 2009.
  • The first defendant is restrained from seeking adjudication of the payment claim dated 31 May 2009.