Vince Schokman & Anor v Xception Construction Pty Limited and Anor [2005] NSWSC 297

Vince Schokman & Anor v Xception Construction Pty Limited and Anor [2005] NSWSC 297

Because no progress certificate was issued and the contract was silent as to the due date in that circumstance, the Act made the payment claim due and payable 10 business days after it was made, on 19 May 2004. Xception therefore had to serve any s 17(2)(a) notice on or before 16 June 2004, but served it on 6 July 2004, and its adjudication application made on 15 July 2004 was also out of time. The adjudication determination was void. Xception's cross-claim failed because s 15(2)(a) requires an election between debt recovery and adjudication, and a claimant who elected adjudication could not revert to curial debt recovery when the adjudication miscarried.

Jurisdiction
Australia
Judgment Date
04 April 2005
Procedural Posture
Equity Division, Technology and Construction List Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw), With a Cross Claim for Debt Under S 15(2)(a). / Judgment After Hearing; Ex Tempore Judgment Revised 7 April 2005.
Outcome
Adjudication determination held void and cross-claim dismissed.
Legal Topics
['validity of Adjudication Determination' 'payment Claim' 'due Date for Payment' 's 17(2) Notice of Intention to Apply for Adjudication' 'time for Adjudication Application' 's 15(2)(a) Election Between Debt Recovery and Adjudication']
['building and Construction' 'security of Payment' 'contract Law' 'civil Procedure'] ['validity of Adjudication Determination' 'payment Claim' 'due Date for Payment' 's 17(2) Notice of Intention to Apply for Adjudication' 'time for Adjudication Application' 's 15(2)(a) Election Between Debt Recovery and Adjudication']

Case Brief

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Procedural Posture

Equity Division, Technology and Construction List Proceedings Concerning an Adjudication Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw), With a Cross Claim for Debt Under S 15(2)(a). / Judgment After Hearing; Ex Tempore Judgment Revised 7 April 2005.

Legal Issues

  1. 1 ['Whether the payment claim was invalid because it failed to identify the construction work to which it related in accordance with s 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW).' 'Whether the s 17(2) notice of intention to apply for adjudication was served outside the 20 business day period.' 'Whether the adjudication application was made outside the period prescribed by s 17(3)(e).' 'Whether the s 17(2) notice was improper in form because it did not refer to the Act.' 'Whether Xception could, after pursuing adjudication, recover the claimed amount as a debt under s 15(2)(a).']

Ratio Decidendi

Because no progress certificate was issued and the contract was silent as to the due date in that circumstance, the Act made the payment claim due and payable 10 business days after it was made, on 19 May 2004. Xception therefore had to serve any s 17(2)(a) notice on or before 16 June 2004, but served it on 6 July 2004, and its adjudication application made on 15 July 2004 was also out of time. The adjudication determination was void. Xception's cross-claim failed because s 15(2)(a) requires an election between debt recovery and adjudication, and a claimant who elected adjudication could not revert to curial debt recovery when the adjudication miscarried.

Court Disposition

Adjudication determination held void and cross-claim dismissed.

Orders

  • ['The adjudication determination made by the second defendant on 12 August 2004 was held void.' 'The cross-claim was dismissed.']