We note below some of the recent cases of particular interest in the construction law field:

Date Name Citation Jurisdiction Link Summary
3 April 2013 Romaldi v Adelaide Interior Linings [2013] SADC 39 SA AUSTLII The court granted an injunction restraining the enforcement of an adjudicator’s determination for $51,219.83 on condition that that amount be paid into court. The plaintiff did not pursue any claim that the determination was invalid or should be quashed; rather the injunction was granted on the ground that there was a “real risk” that the defendant would be unable to pay the adjudicated amount if unsuccessful in the litigation of the underlying dispute. It is understood that the decision is to be appealed.
14 September 2011 Property Builders Pty Ltd v Carlamax Properties Pty Ltd [2011] NSWSC 1068 NSW Austlii A cross claim can be used to set aside a statutory demand based on an adjudicator’s decision; Jem v Hansen Yunken not followed.
9 September 2011 Clyde Bergemann v Varley Power [2011] NSWSC 1039, McDougall J NSW Austlii c $2.5 million decision upheld; errors in the decision were intra jurisdiction
24 September 2010 Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 NSW AUSTLII Adjudicators’ decisions are subject to judicial review (certiorari); Brodyn v Davenport not followed. See note.
1 September 2010 Mackie v Central Coast Leagues Club [2010] NSWSC 960 NSW AUSTLII The Plaintiff sustained injuries while installing lighting and audio equipment at the defendant’s premises. One basis on which the Plaintiff sued the defendant for damages for negligence was that he was performing (and the defendant was engaged in) ‘construction work’ and ‘building work’ within the meaning of the Safety Construction Act 1912 (NSW).The Court held that adjusting lighting for a fashion parade and installing sound equipment was not ‘building work’ or ‘construction work’ for the purposes of the Act.
30 August 2010 Agusta Industries v Nicola Constructions [2010] NSWSC 925 NSW AUSTLII Section 20 (1)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) is not a pre-condition to the existence of an adjudicator’s authority to make a determination.  An adjudicator’s failure to comply with section 20(1)(a) of the Act is not a failure to comply with the basic and essential requirements laid down by Act that are required for a determination to be valid.There will be no denial of natural justice where a party has had ample opportunity to request a copy of the adjudication application or to lodge a response.
27 August 2010 Lanmac (NSW-ACT) Pty Ltd v Andrew Bruce Wallace and Ors [2010] NSWSC 976 NSW AUSTLII If a party who attempts to avoid the triggering of section 25(4) of the Building and Construction Industry Security of Payment Act 1999 (NSW) by bringing proceedings to prevent a party from relying on a judgment without seeking to set aside the Judgment (i.e. by injunction rather than an application to set aside Judgment) the Court will make an order staying the proceedings until that party provides a bank guarantee or pays money in to the Court.
26 August 2010 Alstom Power v Yokogawa Australia Pty Ltd (No. 5) [2010] SASC 267 SA AUSTLII There is no express waiver of a privilege in respect of a whole privileged document where a portion of that privileged document had been provided to the other party.
4 August 2010 De Neefe Signs Pty Ltd & Anor v Build1(Qld) Pty Ltd [2010] QSC 279 QLD AUSTLII Section 17 of the Building and Construction Industry Payments Act 2004 (QLD) does not preclude the making of a second claim, providing the conditions for making of the claim are otherwise satisfied .
28 July 2010 Laing O’Rourke Australia Construction v H&M Engineering and Construction [2010] NSWSC 818 NSW AUSTLII Adjudicator’s decision invalid for breach of natural justice and failure to exercise statutory powers in good faith.
26 July 2010 Ertech Pty Ltd v GFWA Contracting Pty Ltd [2010] WASC 181 WA AUSTLII Adjudicator’s determinations are enforceable as judgments in WA without any suspension of enforcement under s 15 of the Civil Judgments Enforcement Act (WA)
23 July 2010 Gaskin v Ollerenshaw [2010] NSWSC 791 NSW AUSTLII Home duties do not necessarily mean a duty of care: A painter purchased a house and engaged an independent painting contractor to carry out painting works to the roof of the house. The contractor was severely injured whilst carrying out the painting works and sued the defendant for negligence stating that the homeowner had a duty of care to, amongst other things, disclose potential dangers to the contractor. Despite the homeowners painting expertise, the Court held that the duty owed by the homeowner was the same as that owed by any ordinary householder (without the relevant expertise) to an independent skilled contractor. Accordingly, the Court found that the homeowner was not negligent in failing to advise the independent contractor of potential dangers.
23 July 2010 T & T Building Pty Ltd v GMW Group Pty Ltd and Ors [2010] QSC 211 Queensland AUSTLII Double dipping by a claimant cannot be raised as a defence where defendant has failed to serve a payment schedule.
19 July 2010 Leveraged Equities Pty Ltd v Huxley [2010] NSWCA 179 NSW AUSTLII This case dealt with the proper construction of a dispute resolution clause in an agreement. In particular, the Equity Division of the Court of Appeal in the Supreme Court of NSW had to determine whether the words “first try to settle” contemplated an intention in the arbitration agreement that the award made by the arbitrator would not be final and binding. It was held that no such intention existed.
14 July 2010 Idameneo (No 123) Pty Ltd v Candetti Constructions Pty Ltd [2010] SASC 213 South Australia AUSTLII A decision relating to an application by a plaintiff for early discovery of documents before pleading a Statement of Claim. Held not in the interests of justice in this case but there is power for the Supreme Court to so order under Rule 136.
15 February 2010 Yeend v Angleberger [2010] SADC 20 South Australia Austlii No summary judgment for return of helicopter log books held pursuant to a claim for lien under s 41 of the Worker’s Liens Act 1893, but injuction on terms of payment in
5 February 2010 Queensland Bulk Water Supply Authority t/a Seqwater v McDonald Keen Group [2010] QCA 7 Queensland AUSTLII Brodyn applied in Queensland
6 November 2009 A J Lucas v Mac-Attack [2009] NTCA 4 NT Pdf Adjudicator’s decision void for want of jurisdiction. Adjudicator cannot give himself jurisdiction by making making an erroneous decision as to a fact or event. The “no review” section in the Act does not prevent the court from deciding on jurisdiction issues
25 September 2009 Grocon v Planit [2009] VSC 426, Vickery J Victoria Austlii Certiorari of adjudicator’s decision available in Victoria; Brodyn not followed
28 August 2009 J-Corp v Mladenis [2009] WASCA 157 WA AUSTLII The Court of Appeal was asked whether a clause limiting liquidated damages to “NIL” prevented the owners from claiming general damages for delay when the builder ran late finishing their home.
15 June 2009 Sopov & Anor v Kane Constructions [2009] VSCA 141 Victoria AUSTLII This decision shows the inherent difficulties likely to be faced by a party who wrongfully terminates a contract.
15 June 2009 A J Richardson Properties Pty Ltd v Segboer [2009] NSWSC 576; Austin J NSW AUSTLII Adjudication winner was not entitled to enforce adjudication award by means of a statutory demand, because the other party had a cross claim which was before the court.
2 June 2009 Uniting Church in Australia Property Trust (Qld) v Davenport & Anor [2009] QSC 134 Queensland AUSTLII Adjudicator injuncted from seeking to correct his decision where proposed change involved a change of reasoning.
14 May 2009 Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA WA AUSTLII A recent Western Australian Supreme Court of Appeal case on mining and exploration licences. Read the Supreme Court case giving rise to the appeal here
5 May 2009 Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416; Rein J NSW AUSTLII Order made restraining claimant from 2nd adjudication of claim already adjudicated.
1 May 2009 Nebmas P/L v. Sub Divide P/L & Ors [2009] QSC 92; McMurdo Queensland AUSTLII Adjudicator was wrong in finding that notice of adjudication had been given in time, but that error did not invalidate the process.
24 April 2009 Hickory Developments Pty Ltd v Schiavello (Vic) Pty Ltd & Anor [2009] VSC 156; Vickery J Victoria AUSTLII Brodyn not good law in Victoria: certiorariavailable to quash adjudicator’s decision. But no quashing on the facts here.
15 April 2009 Dualcorp Pty Ltd v Remo Constructions Pty Ltd [2009] NSWCA 69; Allsop P Macfarlan JA Handley AJA NSW AUSTLII Claimant not entitled to judgment on adjudication application for claims already submitted for adjudication, despite absence of a payment schedule.
10 March 2009 Skinner v. Timms & Anor [2009] QSC 46 Queensland AUSTLII Adjudicator’s decision void; no jurisdiction because claimant had no entitlement to progress claim.
20 February 2009 Abigroup v Hardesty & Hanover (3rd Party Security for costs decision No 3) [2009] SASC 39; Judge Lunn SA rtf No security for costs where supporting affidavit “less than the whole truth”; provisional decision revisited.
23 December 2008 Abigroup v Hardesty & Hanover [2008] SASC 369; Anderson, White and Kelly JJ SA AUSTLII Appeal allowed against refusal to order separate trial as to enforcability of expert determination; see also news item
3 December 2008 Abigroup v Hardesty & Hanover (3rd Party Security for costs decision No 1) [2008] SASC 337; Judge Lunn SA rtf Provisional decision for security against US-based claimant. Declining to follow Simaan v Pilkington, [1987] 1 WLR 516 Calderbank offer not admissible. But see also decision of 20 February 2009.
4 November 2008 Brown v Dream Homes [2008] SASC 295 SA AUSTLII A decision in relation to a pre-purchase building inspection report and noted that leave to appeal had been granted.
30 October 2008 Silent Vector Pty Ltd t/as Sizer Builders v Squarcini [2008] WASC 246 WA AUSTLII Examination of how to interpret the standard form contract known as AS2124-1992 where the parties had used inconsistent language when completing the contract.
29 October 2008 Blayney Wholesale Foods Pty Ltd v BIS Cleanaway Ltd [2008] NSWSC 1146 NSW AUSTLII Due to the existence of a genuine dispute the Court set aside the statutory demand.
19 August 2008 Protectavale v K2K [2008] FCA 1248; Finkelstein J Victoria AUSTLII No summary judgment for claimant because (1) payment claim did not sufficiently identify the construction work claimed for and (2) this was a final, not a progress, claim.
15 August 2008 Woodgate v Fawcett [2008] NSWSC 868 NSW AUSTLII The Court was asked to determine whether money repaying a loan from a widowed mother to her son should be handed over to the liquidator of the son’s company.
4 August 2008 Merym and Methodist Ladies College [2008] WASAT 164; Mr C Raymond WA Austlii No review of adjudicator’s decision
1 August 2008 Bezzina v Deemah Stone [2008] QCA 213 Queensland AUSTLII A 2nd adjudication decision was not flawed by adjudicator failing to adopt the same valuation as in an earlier adjudication, since the 2nd adjudicator was not informed of the 1st adjudication decision.
24 July 2008 Plaza West v Simon’s Earthworks [2008] NSWSC 753; Hammerschlag J NSW AUSTLII Adjudication’s determination not void;bona fide attempt and no breach of natural justice
22 July 2008 Clough v Natural Gas Corporation [2008] FCAFC 136;
Australia AUSTLII No injunction to restrain owner from calling unconditional performance bank guarantee
4 July 2008 Theiss v Lane Cove Tunnel [2008] NSWSC 729; Hammerschlag J NSW AUSTLII A 4 day provision for service of a “payment schedule” did not supplant the 10 day period in the Act, because it provided for a different species of payment schedule.
20 June 2008 Northbuild v Discovery Beach [2008] QCA 160; Muir JA and Mackenzie AJA; Atkinson J dissenting Queensland AUSTLII Expert determination was not changed into an arbitration process by experts allowing cross examination of witnesses
18 June 2008 Lumbers v Cook [2008] HCA 27; GLEESON CJGUMMOW, HAYNE, CRENNAN AND KIEFEL JJ SA AUSTLII Quantum meruit not available to a subcontractor against an owner where there was a contractual chain; Supreme Court decision overturned.
18 June 2008 Shorten v David Hurst [2008] NSWCA 134 NSW AUSTLII A contract for 10 residential units, where the owner intended to live in 1 unit, was not excluded from BCI(Sop)A 1999 under the residential exception
24 April 2008 Gunston v Lawley [2008] VSC 97 Victoria AUSTLII This decision illustrates the dilemma faced by subsequent owners of a defective building when a subcontractor is thought to have negligently caused damage.
18 April 2008 Cubelic v Civil Works Group [2008] SADC 41; HHJ Robertson SA AUSTLII Quantum meruit insufficient to found a claim to a lien under the Workers’ Liens Act 1893; see Update
17 April 2008 O’Donnell Griffin v John Holland [2008] WASC 58, Beech J WA Austlii Adjudicator’s decision enforced notwithstanding cross claim – no set-off.
14 April 2008 Hervey Bay (JV) Pty Ltd v Civil Mining and Construction Pty Ltd & Ors [2008] QSC 58 Queensland AUSTLII This decision examines the role of the Superintendent where the building contract has been amended to give the Superintendent an absolute discretion and does not require the Superintendent to act fairly and honestly.
7 December 2007 Badge Construction v Rule Chambers [2007] SASC 417; Gray, White and David JJ SA AUSTLII No workers lien available without a certificate required by the contract
1 November 2007 Trysams Pty Ltd v Club Constructions (NSW) Pty Ltd [2007] NSWSC 941; Hammerschlag J NSW AUSTLII Adjudicator’s decision void because of failure to consider submissions.
26 October 2007 Ace v ECR Local Court, NSW,Magistrate H.C.B. Dillon NSW HTMLNote Adjudicator’s decision from Western Australia void because of failure to consider submissions.
8 October 2007 Bezzina v Deemah Stone [2007] QSC 286; Douglas J Queensland AUSTLII 2nd adjudicator was not told of the valuation of a 1st adjudicator and reached a different conclusion. Judicial review allowed under the Judicial Review Act 1991.
8 October 2007 Nassif v Fahd [2007] NSWCA 269, Ipp, McColl JJA and Bryson AJA NSW AUSTLII Claim of collateral contract dismissed as inconsistent with the main contract for the sale of a house.
20 September 2007 Westpoint Management Ltd v Chocolate Factory Apartments Ltd [2007] NSWCA 253, Giles, McColl and Campbell JJA NSW AUSTLII Sale of a property may be a relevant factor in considering if rectification is reasonable. The fact of sale remains immaterial to any claim for rectification of defective works.
7 September 2007 O’Donnell Griffin v Davis [2007] WASC 215, Templeman J WA Austlii No injunction to restrain adjudication where jurisdiction disputed
26 July 2007 Australian Rail Track Corporation v Twentieth Century Super Pace Nominees [2007] SASC 284, Debelle J SA AUSTLII Court ordered variation of court rules to allow joint offer by all parties other than 2nd 3rd party
17 July 2007 Laing O’Rourke v Transport Infrastructure [2007] NSWSC 723; Hammerschlag J. NSW Html Clause requiring parties to meet and negotiate in good faith void for uncertainty – but nothing uncertain about the expert determination and arbitration provisions
4 July 2007 DGT Steel and Cladding Ltd v Cubitt Building and Interiors Ltd [2007] EWHC 1584 (TCC); HHJ Coulson England BAILLIFE Dispatch summary Court proceedings stayed in order to allow agreed adjudication procedure to take place
27 June 2007 Hutchens v City of Holdfast Bay [2007] SASC 238, Debelle J SA AUSTLII Held that views are one aspect of amenity. Amenity is both public and private. Obliteration of the view was so extreme that the proposed development was found to be inconsistent with the Development Plan and approval refused.
18 June 2007 Skinner and Anor v Harnas [2007] SASC 215; Doyle CJ, Bleby and Sulan JJ SA HTML Appeal of 1st instance decision unsuccessful.
31 May 2007 AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360 (TCC) England BAILII Brodyn v Davenport not followed, but an adjudicator’s decision that was 1 day late was enforced on other grounds.
27 April 2007 Fernandes Constructions v Tahmoor Coal [2007] NSWSC 381 NSW AUSTLII A tax invoice containing the words, “This invoice is prepared under the Building and Construction Industry security [sic] of payments [sic] Act 1999” was a sufficient payment claim under s13(2) of the NSW BaCISoPA 1999, taking a fair but broad approach, without being pedantic or astute to find defects.
17 April 2007 Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349, Nicholas J NSW AUSTLII Retainer agreement between structural engineer and client considered to be for professional services and not a “specific result”. Award of damages limited to loss and damage. Did not include costs of achieving the “result”.
3 April 2007 Skinner and Anor v Harnas [2007] SASC 122, Gray J SA AUSTLII Contract provided for variations to be paid for at actual cost. Arbitrator wrongly awarded quantum meruit based on expert evidence of reasonable cost. Leave to appeal refused, since nothing precluded the  arbitrator from relying on the expert evidence as evidence of actual cost.NB unsuccessful appeal.
30 March 2007 Karalis v Archonstruct P/L [2007] SADC 34, Kitchen J SA AUSTLII “Cost Plus” contract between builder and owner failed to appoint an architect. Implied term that owners took on role of certifier under the contract. Director of building company qualified architect and awarded his professional fees.
6 March 2007 Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2) [2007] EWHC 447 (TCC) [2007] EWHC 447 (TCC) England & Wales BAILLIFEG news item Ambiguities in the contract terms were resolved in favour of the contractual extension of time mechanism, and accordingly, time had not been set at large. Gaymark Investments v Walter Constructionnot followed.
2 March 2007 Impulse Electrical v Mother Naturers Chermside [2007] QDC 23 Queensland AUSTLII No payment schedule was served following a valid payment claim, and so the Defendant had no reasonable prospect of a defence. Summary judgment without any need to adjudicate.
13 February 2007 Gemini Nominees v Queensland Property Partners [2007] QSC 20 Queensland AUSTLII A cost plus contract made in breach of theDomestic Building Contracts Act 2000 cannot found a valid payment claim under BaCIPA 2004Cant v Casella applied.
5 February 2007 Boutique Venues Pty Ltd v Jacg Pty Ltd [2007] NTSC 5, Southwood J Northern Territory HTML 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
30 January 2007 W Cook Builders v Lumbers [2007] SASC 20, Sulan and Layton J; Vanstone J dissenting South Australia UpdateAUSTLIINews item Head contractor arranged for its contractual obligations to be performed by a closely related company, which held no builder’s licence. That company was nevertheless held to be entitled to recover from the principal on a quantum meruit basis.NB Special leave has been granted to appeal; see news item
20 December 2006 G W Enterprises Pty Ltd v. Xentex Industries Pty Ltd & Ors [2006] QSC 399 Queensland AUSTLII No breach in natural justice by adjudicator. Whilst the claim might have been stale (12 months+ since work was done) this was not apparent on the face of the payment claim, and it was too late for the respondent to raise this in his adjudication response.
20 December 2006 McKenzie and Anor v Miller [2006] NSWCA 377 , Handley, Tobias and Basten JJA NSW AUSTLII Architect engaged using RAIA Client/Architect Agreement.  Architect provided estimate to client at initial design phase only. Representation as to the estimated cost was continuing. Cost plus contract. Costs blown out substantially. Court held Architect was required to advise within a reasonable timeframe if he had reason to believe expenditure was likely to be significantly varied. Found to be misleading and deceptive conduct.
15 December 2006 Cant Contracting v Casella [2006] QCA 538,Williams and Jerrard JJA and Philip McMurdo J Queensland AUSTLII Summary judgment at 1st instanceoverturned; the lack of a builder’s licence under Queensland Building Services Authority Act 1991, and the no payment rule under s 42(3), was not overridden by the BaCIPA 2004 (Qld).
4 Dece,ber 2006 Jem Developments v Hansen Yuncken [2006] NSWSC 1308, Austin J NSW Austlii Case on offsetting claims now overturned; see Property Builders v Carlamax
30 November 2006 Diploma Construction v Esslemont [2006] WASAT 350, Mr C Raymond Western Australia AUSTLII There is no generalised right to review of adjudicator’s decisions; under s 46 of the Construction Contracts Act 2004 (WA) the right of review to the State Administrative Tribunal is limited to decisions as to whether the contact concerned is a construction contract, or whether the application had been prepared in served in accordance with s 26.
29 November 2006 Siemens v Vaughan [2006] VSC 452, Kaye J Victoria AUSTLII Adjudication winner was permitted to enforce bank guarantee securing the adjudicated amount, because reference to a Dispute Committee was not commencement of proceedings within the meaning of s 25
28 November 2006 Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334, Beazley, Ipp and Tobias JJA NSW AUSTLII Subcontractor not liable for loss of profits sustained by the Head Contractor following Subcontractor’s breach of the Contract which resulted in termination.  Subcontractor not provided with Head Contract and loss of profits therefore not within the contemplation of the Subcontractor. Loss of profit also not considered a likely outcome of the breach.
10 November 2006 Abigroup v River Street Developments [2006] VSC 425, Habersberger J Victoria AUSTLII Summary judgment refused on a BaCISoPclaim; it was “undesirable” to say why.
8 November 2006 Barton (T/A Freeform Builders) v Stiff [2006] VSC 307, Hargrave J Victoria AUSTLII The warranty as to fitness for purpose relates to the purpose as properly identified. Site investigations and observations failed to discover “highly unusual” groundwater. A designer/builder used an inadequate design and materials but was found not to be in breach of the said warranty. The purpose was identified by the investigations which failed to show groundwater.
20 October 2006 Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282, Beazley JA, Ipp JA, Tobias JA NSW AUSTLII Abigroup tendered on the spillway for a dam. Sydney Water provided tender documents stating “no plans available for the embankment or any outlet pipe”. Abigroup underestimated extent and cost of the works based on information provided. Sydney Water failed to disclose a 1951 Plan showing the outlet pipe. Misleading & Deceptive Conduct. Abigroup awarded entire costs of excess excavation.
1 September 2006 Cant Contracting P/L v Casella & Anor [2006] QSC 242, de Jersey CJ Queensland HTML 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.
28 August 2006 Bitannia v Parkline [2006] NSWCA 238, Hodson JA, Tobias JA and Basten JA Australia and NSW HTMLNews item 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.
14 August 2006 John Goss v Leighton + Davenport [2006] NSWSC 798, McDougall J NSW HTML 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.
4 August 2006 Biseja v Nsi Group [2006] NSWSC 835,
McDougall J.
NSW HTML 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.
12 July 2006 Kyren Pty Ltd v Built Projects Pty Ltd [2006] SASC 204, Layton J SA HTML Construction of contract – estimate not treated as creating fixed price.
10 July 2006 Multipower v S & H Electrics [2006] NSWSC 757 NSW HTML
9 June 2006 Direct Engineering Services Pty Ltd v A Goninan and Co Ltd [2006] WASC 105, Murray J WA AUSTLII Subcontractor causes a $400,000 fire in the course of carrying out $8,000 worth of works.  Not bound to indemnify the main contractor as words on the reverse side of a purchase order were not faxed and purchase order not received until after the fire. However, subcontractor found liable for negligence.
6 May 2006 The Minister for Commerce  v. Contrax Plumbing [2005] NSWCA 142,Hodgson JA, Bryson JA, Brownie AJA NSW HTML 1st Instance decision upheld
5 May 2006 Cordon Investments v Lesdor Properties [2006] NSWSC 481; Barrett J NSW PDF Court held that the phrase “completion of the works” meant completion in fact and was not akin to “practical completion”.  Builder applied for Mandatory injunction requiring the developer to sign plan of sub-division stating works were complete.  Application refused on basis that although works “practically complete” not complete in fact. No breach by Developer.
5 May 2006 Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd & Anor [2006] NSWSC 375, White J NSW HTML
28 April 2006 Springs v Profile [2006] NSWSC 344, Rein J NSW HTML 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.
21 April 2006 OneSteel v United KG [2006] SASC 119, Debelle J South Australia HTML 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.
18 April 2006 Rojo v Jillcris [2006] NSWSC 309, Einstein J NSW HTML 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.
11 April 2006 Phoenix Project Development Pty Ltd v On Hing Pty Ltd [2006] QDC 75 Queensland HTML
27 March 2006 Procorp v Napoli [2006] NSWSC 205, Einstein J NSW HTML 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.
14 March 2006 Shell v Mayr #2 [2006] NSWSC 154, Bergin J NSW HTML 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.
10 March 2006 Kirkby and Anor v Coote and Ors [2006] QCA 61,Williams, Keane JJA and McMurdo J QLD AUSTLII Court applied the general principles set down in Bellgrove v Eldridge, requiring demolition and rebuilding of the property, to a claim in Negligence. Foundations designed by engineer failed.  Found liable notwithstanding the builder failed to properly comply with the report as footings would have failed in any event.
6 March 2006 Shell v Mayr #1 [2006] NSWSC 94, Bergin J NSW HTML 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.
3 March 2006 Thiess Services Pty Ltd v Mirvac Qld Pty Ltd [2006] QCA 50 QLD AUSTLII Contractor entered agreement to remediate a site requiring the contractor to undertake all works to fully remediate the site and have it removed from the EPA register. Risk of discovery of further  contaminant as a latent condition allocated to contractor. Contamination much more extensive than contemplated by Remediation Action Plan. Contractor claimed “uneconomical” to fix. Court held contractual obligations absolute.
24 February 2006 Moorabool v Taitpanui [2006] VSCA 30 Victoria HTML Local council’s vicarious liability to subsequent owners for negligence of surveyor
23 February 2006 Sebastian v Act & Ors [2006] ACTSC 6, Higgins CJ ACT AUSTLII A child was injured while playing at a partly completed gross pollution trap on Crown land.  Works had ceased and a new contractor had agreed to complete the works and contractual documents were signed.  The new contractor had not commenced on site and production of insurance certificates required prior to accessing the site. The new contractor was not liable to indemnify the ACT. Conversely, the superintendent was held liable as it had inspected the site and its duties included providing directions to the (former) contractor in the event the site was unsafe.
15 February 2006 Energy Australia v Downer Construction [2006] NSWSC,52, Nicholas J NSW HTML
31 January 2006 Pacific v Soliman [2006] NSWSC 13, Brereton J NSW RTF Adjudicator disregarded respondent’s submissions that had not been raised in the payment schedule, and thus accepted the claimant’s claim at face value. Held the adjudicator’s purported determination was void, because there had been no determination that the work had been done, or of its value, as required by the Act.Several other challenges were rejected.
30 January 2006 Brookhollow Pty Ltd v R & R Consultants [2006] NSWSC 1 NSW RTF Considered whether a payment claim by sub-contractor was valid because of failure to serve within the period specified by the contract. Held payment claim was not void.
22 December 2005 Pan Urban Watergate Pty Ltd v Graham [2005] VSC 505, Whelan J VIC AUSTLII A Victorian stockbroker paid $5,000 to secure an “off the plan”, 143 square metre, $1.2M, Penthouse in the docklands. The stockbroker subsequently signed a contract which included amended plans. He refused to settle claiming, inter alia, misleading & deceptive conduct. Court found his evidence unreliable and rejected arguments that the general nature of the plans and specifications were uncertain.
20 December 2005 Decor Ceilings v Cox Supreme Court of South Australia, Besanko J South Australia HTML 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.
14 December 2005 Straits v Murchison Supreme Court of western Australia, Court of Appeal, Wheelae JA Western Australia HTML Expert determination provision upheld;Baulderstone Hornibrook v Kayahdistinguished
25 November 2005 Pioneer Sugar Mills Pty Ltd v. United Group Infrastructure Pty Ltd [2005] QSC 354, Byrne J Queensland AUSTLII Contract was entered into before the Building and Construction Industry Payments Act2004; variations were agreed after. The Act did not bite.
25 November 2005 Prynew Pty Ltd v Piling Contractors (Qld) Pty Ltd [2005] NSWSC 1211 NSW RTF An adjudicator’s determination is not the final determination of matters between the parties. An adjudication certificate is provisional only.
23 November 2005 Nepean Engineering Pty Ltd v Total Process Services Pty Ltd [2005] NSWCA 409 NSW RTF Considered whether a payment claim was a nullity for not identifying work for which payment claimed. Court held that the claim was valid as it purported to identify, in a reasonable way, the work in respect of which it was made.
16 November 2005 Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391 NSW RTF Progress claims are to be read in the context of industry conventions and usage adopted by the parties in earlier contractual dealings.
14 November 2005 Shellbridge Pty Ltd v Rider Hunt Sydney Pty Ltd [2005] NSWSC 1152 NSW RTF Plaintiff alleged adjudication was void because the adjudicator failed to consider important no-dispute and no-contract submissions. Held that adjudicator did give due consideration to these submissions in the way envisaged and required.
8 November 2005 Holmwood Holdings Pty Ltd v Halkat Electrical Contractors Pty Ltd [2005] NSWSC 1129 NSW RTF Adjudicator did not have access to the entire contract. Court held this constituted a jurisdictional error as the adjudicator failed to have regard to all relevant provisions of the contract and therefore did not perform the functions to which he was entrusted.
4 November 2005 Errol Investments Pty Ltd v Taylor Projects Group Pty Ltd [2005] NSWSC 1125 NSW RTF A failure by the adjudicator to afford natural justice or to have regard to a party’s submissions will result in the determination being void. In this case, held there was no evidence of a denial of natural justice. The fact a party’s statutory declaration was not referred to in the decision does not mean regard was not had to it.
3 November 2005 Lanskey v Noxequin [2005] NSWSC 963 NSW RTF An adjudicator’s decision was flawed as the matter was decided on a basis the parties did not present to the adjudicator and by reference to matters of which the parties had no notice.
12 October 2005 J J McDonald v Gall Supreme Court of Queensland Queensland PDF In Queensland, an adjudicator’s decision is subject to judicial review under the Queensland Judicial Review Act.
5 August 2005 Energetech v Sides Engineering & Anor [2005] NSWSC 801 NSW Lawlink Even if adjudicator has erred in finding completion had occurred, that would not vitiate his decision.
19 July 2005 Top End v Salem Venning J NZ PDF Contractor served valid payment claims. Employer failed to serve a payment schedule.  So contractor was entitled to summary judgment (no set off allowed) without the need to adjudicate.
13 July 2005 Coordinated Construction Co. Pty. Ltd. v. J.M. Hargreaves (NSW) Pty. Ltd. & Ors. [2005] NSWCA 228 NSW Lawlink Delay damages and interest under contract adjudicable; Brodyn not revisited.
8 July 2005 Shelford v Rescom County Court of Victoria at Melbourne,  Judge Shelton Victoria PDF Enforcement refused because no attempt to agree adjudicator before obtain nomination by ANA.
5 July 2005 Tolfab v Tie [2005] NSWSC 326 NSW Lawlink Timwin applied, but on the facts, no failure of good faith by adjudicator.
8 June 2005 Facade Innovations Pty. Ltd. v. Timwin Constructions Pty. Ltd. & Ors [2005] NSWCA 197 NSW Lawlink No payment out of security money pending appeal from 1st instance decision, because the appeal was reasonable.
1 June 2005 Timwin Construction v Facade Innovations [2005] NSWSC 548 NSW Lawlink Adjudicator’s decision void because he did not attempt in good faith to consider the submissions put by the parties to understand what, in relation to variations, the real dispute was.
5 May 2005 Taylor Projects Group Pty Limited v Brick Dept Pty Limited & Ors [2005] NSWSC 439 NSW HTML Various challenges to an adjudicator’s decision alleged error and natural justice grounds: all rejected.
29 April 2005 Alan Conolly & Co v Commercial Indemnity [2005] NSWSC 339 NSW HTML Three invoices served in the same facsimile can constitute one payment claim under the Building and Construction Industry Security for Payment Act 1999.
26 April 2005 Carillion v Devonport [2005] EWHC 778 (TCC), Jackson J England HTML Summary judgment on adjudicator’s decision; over £100 million value. Natural justice challenges must establish a “serious breach”.
22 April 2005 Lifestyle Retirement Projects v Parisi Homes [2005] NSWSC 411 NSW HTML No interlocutory injunction to restrain allegedly invalid adjudication.
15 April 2005 George v Canam [2005] NZCA 84, Robertson J NZ PDF Summary judgment without need for adjudication.
14 April 2005 Australian Remediation Services Pty Ltd v Earth Tech Engineering Pty Ltd [2005] NSWSC 362 NSW RTF Held that the role of court is to enforce an adjudicator’s determination or, in limited circumstances, to restrain enforcement of the determination. Held that it is not appropriate for the court to interfere in the implementation of the adjudication scheme other than in the case of enforcement or restraint of enforcement.
13 April 2005 Co-ordinated Construction v Climatech [2005] NSWSC 312, Bergin J NSW HTML A claim may be made under the Act for delay costs.
7 April 2005 Schokman v Xception [2005] NSWSC 297 NSW RTF Adjudication notice late; adjudication proceedings were thus invalid.
3 March 2005 Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd (2005) 62 NSWLR 385 NSW A party is entitled to concurrently pursue statutory and common law rights (in this case, adjudication and District Court injunction).
15 February 2005 Domaine v Ria County Court of Victoria at Melbourne,  Judge Shelton Victoria RTF No stay of Building & Construction Industry Security of Payment Act proceedings under s.57(2) of the Domestic Building Contracts Act 1995.
16 December 2004 ADH Plant Hire v Construct Co County Court of Victoria at Melbourne,  Judge Shelton Victoria No express agreement of reference dates in the contract – tacit acceptance of de facto procedure not enough – therefore progress payment dates fell to be calculated from the default provisions at section 9(2)(b) of the Building and Construction Industry Security of Payment Act 2002 (Victoria). On the facts, the plaintiff was not entitled to the disputed progress payment, therefore there was no valid claim under s14, therefore no summary judgment.
3 November 2004 Brodyn v Davenport [2004] NSWCA 394, Hodgson JA, with Mason P and Giles agreeing NSW HTML Ingredients of valid determination are1. compliance with the basic requirements2. a bona fide attempt by the adjudicator to exercise the relevant power and3.no substantial denial of the measure of natural justice that the Act requires to be given.
13 September 2004 Minister for Commerce v Contrax Plumbing & Ors [2004] NSWSC 823 NSW HTML Various challenges to an adjudicator’s decision on jurisdictional and natural justice grounds: all rejected.
3 August 2004 AMD Formwork v Yarraman County Court of Victoria at Melbourne,  Judge Shelton Victoria PDF Summary judgment for plaintiff because valid payment claim but no payment schedule – no need for adjudication. Practical – not strict – approach taken to s13 – it is enough if the payment claim tells the recipient enough to enable it to lodge a payment schedule in response; Jemzone not followed.
30 April 2004 Performance Builders v Southern Restaurants County Court of Victoria at Melbourne,  Judge Cohen Victoria PDF Jurisdictional challenge rejected: no arguable case was made that this was a final rather than a progress claim.
20 April 2004 John Holland v Cardno [2004] NSWSC 258, Einstein J New South Wales Lawlink Jurisdictional error and denial of natural justice shown to have occurred. Adjudicator does not have the power to consider materials supplied by a claimant in its adjudication application which go outside the payment claim.
30 March 2004 The Concrete Panel Co v Advanced Storage Systems County Court of Victoria at Melbourne,  Judge Shelton Victoria No summary judgment because this was a final, not a progress, claim.
15 March 2004 TUF V Capon Judge D M Wilson QC NZ PDF Contractor served valid payment claims. Employer failed to serve a payment schedule.  So contractor was entitled to summary judgment (no set off allowed) without the need to adjudicate.
4 March 2004 Quasar Constructions v Demtech Pty [2004]  NSWSC 116,Barrett J NSW Austlii To identify a reference date, a contractual term must be express, but need not refer to the legislation or the relevant section
6 November 2003 Brodyn v Davenport [2003] NSWSC 1019, Einstein J NSW HTML Upheld on appeal.
30 November 1954 Masters v Cameron (1954) 91 CLR 355 NSW HTML Three classes of letter of intent