Cases

Romeo v TQM Design and Construct Pty Limited [2013] NSWCA 72

30 April 2013

When parties to a construction contract fall into dispute, and settle those disputes by means of a deed of settlement, is that deed of settlement a construction contract which can found a payment claim under the Security of Payment legislation? In this case the settlement deed proved for an initial payment, and then payment of […]

Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd & Anor [2012] QCA 276

16 October 2012

The Court of Appeal in Queensland has dismissed an appeal against a first instance finding that the adjudicator did have jurisdiction to decide that work was “construction work” within the meaning of the legislation.

Alstom v Yokogawa (No. 7): Good Faith Et Al

5 June 2012

There are some seminal decisions in the area of construction law that are remarkably pithy, but the decision of Justice Bleby in Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49, in which judgment was delivered on 2 April 2012, is not one of them.  The judgment runs to 461 pages, and […]

Grindley Constructions Pty Ltd v Painting Masters Pty Ltd [2012] NSWSC 234

4 June 2012

One of the several means available to challenge an adjudicator’s determination is to seek an injunction to restrain the claimant from filing an ANA’S certificate in any court. The test here is slightly different from one of the alternatives, such as seeking a declaration that the determination is void. To obtain an interim injunction, the plaintiff merely […]

New South Wales Land and Housing v Clarendon Homes [2012] NSWSC 333

4 June 2012

A decision of an adjudicator survived challenge on a number of grounds. Of particular interest is ground 2: the adjudicator awarded some 20% more than was being claimed.  However, McDougall J found that this error was not fatal because it was the sort of error that was amenable of correction under section 22(5) of the […]

Disputes Deferred Under West Coast Model

10 April 2012

The Supreme Court of the Northern Territory has declined to follow a string of Western Australian decisions as to the interpretation of Section 8(a) of the Construction Contracts (Security of Payments) Act (NT), which is in very similar terms to Section 6(a) of the Construction Contracts Act 2004 (WA).  The Section provides that a Payment […]

Workers Lien Maintained

6 January 2012

The South Australian District Court has refused to strike out a lien registered under the Workers Liens Act 1893 (SA) in the case of Ian Wood Homes v Langsforde. In his reasons for his decision, Master Norman noted that the application was brought following a termination of the contracts as a result of repudiatory breach […]

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20 December 2011

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20 December 2011

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Birdon v Houben Marine

9 December 2011 - Citation: [2011] FCA 1313

Birdon Pty Ltd v Houben Marine Pty Ltd (No 2) [2011] FCA 1313   The avenues available for a party who wishes to stop or quash a adjudication continue to expand. In this case, the Federal Court granted an injunction under s 234 of the Australian Consumer Law restraining an adjudication before Philip Davenport on […]

Hansen Yunken v Ericson

9 December 2011

Hansen Yuncken Pty Ltd v Ian James Ericson trading as Flea’s Concreting & Anor [2011] QSC 327 A permanent injunction was granted restraining the enforcement of the decision of Philip Davenport as adjudicator on the ground that the payment claim was tainted by fraud in the sense of deliberate exaggeration. But the court dis require […]

Perrinepod v Georgiou

13 October 2011 - Citation: [2011] WASCA 217

A decision by an adjudicator to proceed with an adjudication notwithstanding complexity is not reviewable by the WA State Administrative Tribunal, but is potentially subject to a prerogative writ. O’Donnell Griffin v John Holland not followed.

Candetti Constructions v Samaras

4 October 2011 - Citation: [2011] SASC 165; Justice Blue

Delay can reduce the amount of a quantum meruit.

Ace v ECR

26 October 2007 - Citation: Local Court, NSW, Magistrate H.C.B. Dillon.

Adjudicator’s decision from Western Australia void because of failure to consider submissions.

Laing O’Rourke v Transport Infrastructure

17 July 2007 - Citation: [2007] NSWSC 723; Hammerschlag J.

Clause requiring parties to meet and negotiate in good faith void for uncertainty – but nothing uncertain about the expert determination and arbitration provisions.

Skinner and Anor v Harnas

18 June 2007 - Citation: [2007] SASC 215; Doyle CJ, Bleby and Sulan JJ

Appeal of 1st instance decision unsuccessful.

Boutique Venues v Jacg

5 February 2007 - Citation: [2007] NTSC 5, Southwood J

Challenges by way of set-off are not ordinarily allowed against a deemed certificate under AS4000 (following a failure to certify), but there may nevertheless be a genuine dispute for the purpose of setting aside a statutory demand

Cant Contracting v Casella & Anor

1 September 2006 - Citation: [2006] QSC 242, de Jersey CJ

Judgment given because there was no payment schedule; lack of a builder’s licence could not be raised as a defence. But NB successful appeal.

Bitannia v Parkline

26 August 2006 - Citation: [2006] NSWCA 238, Hodson JA, Tobias JA and Basten JA

Section 15(4)(b) of the Building and Construction Industry Security of Payments Act 1999 (NSW) does not preclude a defence based on misleading conduct contrary to section 52 of the Trade Practices Act 1974 (Cth). Obiter, per Basten J, were it otherwise, the SoP legislation would have been unconstitutional.

John Goss Projects v Leighton Contractors & Anor

14 August 2006 - Citation: [2006] NSWSC 798, McDougall J

Adjudicator declined to consider the valuation of a claim, since he disagreed with McDougall J’s earlier obiter analysis in Rothnere v Quasar [2004] NSWSC 1151. The adjudicator decided the issue on a basis for which neither party had contended (it was common ground that he had not notified the parties of his intention to do so, or invited them to put submissions on the point). Breach of natural justice.

Biseja v NSI Group

4 August 2006 - Citation: [2006] NSWSC 835, McDougall J

Adjudicator did not err in finding that payment to contractor by transfer of units was not excluded by section 7(2)(c) of the Act.

Kyren v Built Projects

12 July 2006 - Citation: [2006] SASC 204, Layton J

Construction of contract – estimate not treated as creating fixed price.

Multipower v S & H Electrics

10 July 2006 - Citation: [2006] NSWSC 757

The defendant (S & H) as subcontractor and the plaintiff (Multipower) as head contractor, made a subcontract in July or August 2004 whereby S & H undertook to carry out electrical work for Multipower on two projects at Courallie Avenue, Homebush. The parties accept that the subcontract was a construction contract to which the Act applied. They agreed that the subcontract was terminated in January 2006; the precise date, although disputed, is irrelevant.

The Minister for Commerce v Contrax Plumbing & Ors

6 May 2006 - Citation: [2005] NSWCA 142, Hodgson JA, Bryson JA, Brownie AJA

1st Instance decision upheld.

Reiby Street Apartments v Winterton Constructions

5 May 2006 - Citation: [2006] NSWSC 375, White J

Reiby Street Apartments Pty Ltd (“RSA”) seeks a declaration that an adjudication determination made by the second defendant, Mr O’Mara, pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW), dated 6 July 2005, is void. It also seeks injunctive relief and an order in the nature of certiorari quashing the determination.

Springs Golf Club v Profile Golf and Other

28 April 2006 - Citation: [2006] NSWSC 344, Rein J

Adjudicator was empowered to determine validity of a payment schedule. The respondent failed in as technical argument that the procedure was flawed by the invalidity of its own payment schedule.

Onesteel v United

21 April 2006 - Citation: [2006] SASC 119, Debelle J

Implied term in target cost contract that reimbursable costs are limited to those that have been reasonably and properly incurred, but no further implication of best endeavours.

Rojo Building v Jillcris

18 April 2006 - Citation: [2006] NSWSC 309, Einstein J

Once a contractor has elected to adjudicate, he cannot withdraw his s 17 adjudication application so as to revive his initial right to recover he unpaid portion of the claimed amount.

Phoenix Project Development v On Hing

11 April 2006 - Citation: [2006] QDC 75

Part 3 of the Building and Construction Industry Payments Act 2004 (BCIPA) provides a mechanism for the speedy and informal resolution of disputes arising about progress payments under building contracts. Phoenix Project Pty Ltd claimed that it contracted with On Hing Pty Ltd to renovate a bar at Woolloongabba; performed the work, but was not paid in full; and, referred the matter to an adjudicator appointed under Part 3 who determined that On Hing should pay Phoenix $95,510 plus interest

Procorp Civil v Napoli Excavations

27 March 2006 - Citation: [2006] NSWSC 205, Einstein J

The adjudicator allowed a claim based on a payment claim that was no more than an undated list of invoices. The court held there were no grounds for setting the determination aside. The adjudicator’s decision failed to reflect payment on account: that error could be corrected by the adjudicator as a slip even after the challenge proceedings in court.

Shell v Mayr 2

14 March 2006 - Citation: [2006] NSWSC 154, Bergin J

If an adjudication loser pays money into court as a condition of challenging a judgment on an adjudication certificate, the court has power to order its payment out to the adjudication winner.

Shell v Mayr 1

6 March 2006 - Citation: [2006] NSWSC 94, Bergin J

The adjudicator’s determination for some $11 million was challenged on the grounds that he had failed to address the merits. It was conceded that the Pacific v Soliman test should be applied, but the court found on the facts that the adjudicator had addressed the merits, notwithstanding that he accepted the claimant’s delay damages causation and quantification (a global claim?) in full. A transport claim was intra jurisdiction, notwithstanding that the transport service was performed in neighbouring Victoria, because the service related to construction work in NSW.

Moorabool v Taitpanui

24 February 2006 - Citation: [2006] VSCA 30

Local council’s vicarious liability to subsequent owners for negligence of surveyor.

Energy Australia v Downer Construction

15 February 2006 - Citation: [2006] NSWSC,52, Nicholas J

On 19 September 2001 Energy and Downer entered into a design and construction contract (the deed) pursuant to which Downer undertook to design and construct a 132kV cable tunnel from a point in the south-western part of the city of Sydney near Campbell Street to Surry Hills for Energy Australia.

Decor vs Cox

22 December 2005 - Citation: Supreme Court of South Australia, Besanko J

The first Australian decision on a global claim for damages arising from the failure of the head contractor to properly co-ordinate a building project.

Straits v Murchison

14 December 2005 - Citation: [2005] WASCA 241

Expert determination provision upheld; Baulderstone Hornibrook v Kayah distinguished

Carillion v Devonport

26 April 2005 - Citation: [2005] EWHC 778 (TCC), Jackson J

Summary judgment on adjudicator’s decision; over £100 million value. Natural justice challenges must establish a “serious breach”.

Brodyn v Davenport – on appeal

3 November 2004 - Citation: [2004] NSWCA 394, Hodgson JA, with Mason P and Giles agreeing

Ingredients of valid determination are 1. compliance with the basic requirements 2. a bona fide attempt by the adjudicator to exercise the relevant power and 3. no substantial denial of the measure of natural justice that the Act requires to be given.

Minister for Commerce v Contrax

13 September 2004 - Citation: [2004] NSWSC 823

Various challenges to an adjudicator’s decision on jurisdictional and natural justice grounds: all rejected.

Ipoh v TPS

16 April 2004 - Citation: [2004] NSWSC 289

Ipoh sues TPS No 2 and Multiplex for damages for breach of contract and negligence in relation to the Galeries Victoria Retail Centre in Sydney. The retail centre was developed pursuant to an agreement known as the Retail Stratum Development Agreement (“RSDA”) between Ipoh and Trust Company of Australia Ltd (“TCA”). On the same date, TCA entered into a building contract with Multiplex, whereby Multiplex agreed to design and construct a complex that included both the retail centre and an office tower.

Brodyn v Davenport

6 November 2003 - Citation: [2003] NSWSC 1019, Einstein J

Upheld on appeal.

Heart Research Institute v Psiron

25 July 2002 - Citation: [2002] NSWSC 646

Following an order that the issues arising on the plaintiffs’ summons be determined separately from and prior to other issues, the issues now being determined raise principally questions going to whether or not the defendant is bound under the terms of a written agreement to participate in an expert determination procedure.

Masters v Cameron

30 November 1954 - Citation: (1954) 91 CLR 355

Three classes of letter of intent