Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588

Supreme Court New South Wales

Medium Neutral Citation: Cadia Holdings Pty Ltd v Downer EDI Mining Pty Ltd [2020] NSWSC 1588 Hearing dates: 27 and 28 October 2020; further written submissions 2 and 6 November 2020 Date of orders: 11 November 2020 Decision date: 11 November 2020 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Challenge to adjudication determination fails; summons to be dismissed Catchwords: BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1999 should be quashed – the mining exception in the Act – whether contract between the parties was a construction contract – whether work called for by contract was for tunnelling or boring or the constructing of underground words for the purpose of extraction of minerals – whether any work called for under the contract was construction work BUILDING AND CONSTRUCTION – whether adjudication determination under the Building and Construction Industry Security of Payment Act 1989 should be quashed – reference dates – whether payment claim served before a reference date arose – whether there was an available reference date Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Building and Construction Industry (Security of Payment) Bill 2020 (WA) Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Capricorn Quarries Pty Ltd v Inline Communications Construction Pty Ltd [2013] 2 QD R 1; [2012] QSC 388 Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201; [1985] HCA 64 Curran v Thomas Borthwicks and Sons Ltd (1990) 26 FCR 241; [1990] FCA 75 Edelbrand Pty Ltd v HM Australia Holdings Pty Ltd [2012] NSWCA 31 HM Hire Pty Limited v National Plant and Equipment Pty Ltd [2012] QSC 4 In the matter of Jimmy's Recipe Pty Ltd (No 2) [2020] NSWSC 632 IW v The City of Perth (1997) 191 CLR 1; [1997] HCA 30 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Sandhurst Holdings (Australia) Limited v Commissioner of State Revenue (2009) 25 VR 59; [2009] VSCA 167 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 Smith v Coastivity Pty Ltd [2008] NSWSC 313 Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2011] QSC 345 Thiess Pty Ltd v Warren Brothers Earthmoving Pty Ltd [2013] 2 Qd R 75; [2012] QCA 276 Wilson v State Rail Authority (NSW) (2010) 78 NSWLR 704; [2010] NSWCA 198 Texts Cited: P Herzfeld and T Prince Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Cadia Holdings Pty Ltd (Plaintiff) Downer EDI Mining Pty Ltd (First Defendant) Doron Rivlin (Second Defendant) Adjudicate Today Pty Ltd (Third Defendant) Representation: Counsel: L Shipway (Plaintiff) D Hume (First Defendant)