Acciona Infrastructure Australia Pty Ltd v Holcim (Australia) Pty Ltd [2020] NSWSC 1330

Supreme Court New South Wales

Medium Neutral Citation: Acciona Infrastructure Australia Pty Ltd v Holcim (Australia) Pty Ltd [2020] NSWSC 1330 Hearing dates: 21 September 2020 Decision date: 29 September 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Adjudication Determination 2020061EA made by the second defendant on 23 July 2020 is void and is quashed. Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – The plaintiff design & construct contractor for the Sydney Light Rail Project entered into an agreement with the first defendant for the production and supply of ready mixed concrete – The first defendant made a payment claim on the plaintiff for ready mixed concrete allegedly supplied to the plaintiff under several purchase orders but not paid for – The plaintiff responded with a nil payment schedule – The claim went to adjudication and the second defendant made a determination for $2,953,035.57 in favour of the first defendant – The plaintiff challenged the jurisdiction of the second defendant on the grounds that the payment claim was invalid because it covered work under more than one contract – The plaintiff also relied on other grounds, including that the adjudicator had denied it procedural fairness, as vitiating the determination – HELD – The second defendant had no jurisdiction, the plaintiff had been denied procedural fairness, and the second defendant had not discharged the statutory task of satisfying herself that the work claimed for had been done and of its value Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1394 John Holland Pty Limited v Roads & Traffic Authority of New South Wales & Ors [2007] NSWCA 19 Laing O'Rourke Australia Construction Pty Ltd v Monford Group Pty Ltd [2018] NSWSC 491 Matrix Projects (Qld) Pty Ltd v Luscombe [2013] QSC 4 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Musico v Davenport [2003] NSWSC 977 National Management Group Pty Ltd v Biriel Industries Pty Ltd [2019] QSC 219 Olympia Group (NSW) Pty Ltd v Hansen Yuncken Pty Ltd [2011] NSWSC 165 Pacific General Securities Ltd v Soliman & Sons [2006] NSWSC 13 Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82 Rail Corporation of NSW v Nebax Constructions [2012] NSWSC 6 SHA Premier Constructions Pty Ltd v Lanskey Constructions [2019] QSC 81 Trinco (NSW) Pty Ltd v Alpha A Group Pty Ltd [2018] NSWSC 239 Category: Principal judgment Parties: Acciona Infrastructure Australia Pty Ltd - Plaintiff Holcim (Australia) Pty Ltd - First Defendant Helen Durham - Second Defendant Representation: Counsel: D Hume - Plaintiff D Robertson - First Defendant