TQM v Dasein [2004] NSWSC 1216

TQM v Dasein [2004] NSWSC 1216

The adjudicator's decision was held to be void due to denial of natural justice; material decisive to the finding regarding time of service was provided to the adjudicator and not copied to TQM, who was thus denied an opportunity to respond, and the adjudicator failed to consider TQM’s adjudication response as required by the Act.

Parties
Plaintiff: TQM Design & Construct Pty Limited; First Defendant: Dasein Constructions Pty Limited (subject to a Deed of Company Arrangement); Second Defendant: National Electrical Communications Association
Jurisdiction
Australia
Judgment Date
03 December 2004
Procedural Posture
Application for Orders Regarding Adjudication Under Building and Construction Industry Security of Payment Act 1999 / Final Hearing and Orders
Outcome
Orders made restraining enforcement of adjudication determination; costs to plaintiff; leave to join adjudicator as party for formal declaration
Legal Topics
Security of Payment, Natural Justice, Adjudication, Service of Process
Building and Construction Law Administrative Law Security of Payment Natural Justice Adjudication Service of Process

Case Brief

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Parties

TQM Design & Construct Pty Limited

Plaintiff

Dasein Constructions Pty Limited (subject to a Deed of Company Arrangement)

First Defendant

National Electrical Communications Association

Second Defendant

Procedural Posture

Application for Orders Regarding Adjudication Under Building and Construction Industry Security of Payment Act 1999 / Final Hearing and Orders

Legal Issues

  1. 1 Whether the adjudication determination under the Act was void due to denial of natural justice
  2. 2 Whether the adjudication application was served or received by TQM on 28 or 29 October 2004
  3. 3 Whether adjudicator erred in refusing consideration of TQM's adjudication response

Ratio Decidendi

The adjudicator's decision was held to be void due to denial of natural justice; material decisive to the finding regarding time of service was provided to the adjudicator and not copied to TQM, who was thus denied an opportunity to respond, and the adjudicator failed to consider TQM’s adjudication response as required by the Act.

Court Disposition

Orders made restraining enforcement of adjudication determination; costs to plaintiff; leave to join adjudicator as party for formal declaration

Orders

  • First and second defendants permanently restrained from taking any further steps under the Building and Construction Industry Security of Payment Act 1999, other than by withdrawing the application under s 26(2)(a) or making a fresh application under s 26(2)(b), in relation to or as a consequence of the adjudication...
  • First defendant to pay the plaintiff's costs of the proceedings.