Tolfab v Tie [2005] NSWSC 326

Tolfab v Tie [2005] NSWSC 326

The adjudicator did not fail to take into account material that was required to be considered. On a fair reading, he considered the plaintiff's additional adjudication response material on contract works in the alternative and was not persuaded by it; as to variations, the matters newly raised were either reasons for withholding payment not included in the payment schedule or matters the adjudicator could not properly consider. The adjudicator gave sufficient reasons for the factual valuation task before him and valued the works by assessing the competing documentary material and accepting the claimant's claimed percentages. There was therefore no substantial denial of natural justice and...

Jurisdiction
Australia
Judgment Date
05 July 2005
Procedural Posture
Proceedings to Set Aside an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Hearing in the Supreme Court of New South Wales, Equity Division, Commercial List
Outcome
Proceedings dismissed with costs.
Legal Topics
['security of Payment Adjudication' 'payment Claim and Payment Schedule' 'adjudication Response' 'natural Justice' 'adequacy of Reasons' 'valuation of Construction Work' 'bona Fide Exercise of Statutory Power']
['building and Construction' 'administrative Law'] ['security of Payment Adjudication' 'payment Claim and Payment Schedule' 'adjudication Response' 'natural Justice' 'adequacy of Reasons' 'valuation of Construction Work' 'bona Fide Exercise of Statutory Power']

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Procedural Posture

Proceedings to Set Aside an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 / Hearing in the Supreme Court of New South Wales, Equity Division, Commercial List

Legal Issues

  1. 1 ["Whether the adjudicator failed to take into account material in the plaintiff's adjudication response contrary to s 22(2)(d) of the Act." 'Whether the adjudicator failed to provide adequate and proper reasons under s 22(3)(b) of the Act.' 'Whether the adjudicator failed to value the construction work as required by s 10 of the Act.' 'Whether any such failures amounted to a substantial denial of natural justice or a failure to make a bona fide attempt to exercise the statutory power, rendering the determination void.']

Ratio Decidendi

The adjudicator did not fail to take into account material that was required to be considered. On a fair reading, he considered the plaintiff's additional adjudication response material on contract works in the alternative and was not persuaded by it; as to variations, the matters newly raised were either reasons for withholding payment not included in the payment schedule or matters the adjudicator could not properly consider. The adjudicator gave sufficient reasons for the factual valuation task before him and valued the works by assessing the competing documentary material and accepting the claimant's claimed percentages. There was therefore no substantial denial of natural justice and...

Court Disposition

Proceedings dismissed with costs.

Orders

  • ['The proceedings are dismissed with costs.']