Timwin Construction v Facade Innovations [2005] NSWSC 548

Timwin Construction v Facade Innovations [2005] NSWSC 548

The adjudicator did not attempt in good faith to exercise the power given by the Act because he did not attempt in good faith to consider the parties' submissions in order to understand the real dispute about variations. Had he considered Façade's submissions, he would have understood that the dispute concerned compliance with clause 7 of the contract and could not reasonably have dismissed Timwin's submissions on that issue as excluded by s 20(2B). The determination was therefore void.

Jurisdiction
Australia
Judgment Date
01 June 2005
Procedural Posture
Proceedings Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Final Judgment on Summons
Outcome
The adjudication determination was held void and Timwin was granted relief, including costs against the first defendant and payment out of the balance of money paid into Court, with a short stay of the payment-out order.
Legal Topics
['security of Payment Adjudication' 'good Faith' 'natural Justice' 'variations' 'void Adjudication Determination']
['building and Construction' 'administrative Law'] ['security of Payment Adjudication' 'good Faith' 'natural Justice' 'variations' 'void Adjudication Determination']

Case Brief

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Procedural Posture

Proceedings Challenging an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Final Judgment on Summons

Legal Issues

  1. 1 ['Whether the adjudication determination made on 21 April 2005 was void because the adjudicator did not attempt in good faith to exercise the power given by the Building and Construction Industry Security of Payment Act 1999.' "Whether the adjudicator failed to consider the parties' submissions to understand the real dispute concerning claimed variations." "Whether reasons in Timwin's adjudication response were impermissibly excluded under s 20(2B) of the Act."]

Ratio Decidendi

The adjudicator did not attempt in good faith to exercise the power given by the Act because he did not attempt in good faith to consider the parties' submissions in order to understand the real dispute about variations. Had he considered Façade's submissions, he would have understood that the dispute concerned compliance with clause 7 of the contract and could not reasonably have dismissed Timwin's submissions on that issue as excluded by s 20(2B). The determination was therefore void.

Court Disposition

The adjudication determination was held void and Timwin was granted relief, including costs against the first defendant and payment out of the balance of money paid into Court, with a short stay of the payment-out order.

Orders

  • ['A declaration was made in terms of prayer one of the summons filed on 2 May 2005.' "The first defendant was ordered to pay the plaintiff's costs of the proceedings." 'The balance of the money paid into Court by the plaintiff, together with any interest accrued thereon, was ordered to be paid out to the plaintiff.'...