EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604

Supreme Court New South Wales

Medium Neutral Citation: EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604 Hearing dates: 5 October 2021 Date of orders: 10 December 2021 Decision date: 10 December 2021 Jurisdiction: Equity - Technology and Construction List Before: Williams J Decision: Declare that the determination of the second defendant is void for jurisdictional error; order that the sum of $79,317.45 paid into court by the plaintiff be paid out to the plaintiff together with any interest payable thereon; order that the first defendant pay the plaintiff's costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the SOP Act) – second defendant adjudicator determined adjudication application by first defendant sub-contractor in respect of a payment claim served on head contractor – plaintiff head contractor contended that adjudicator's determination was void for jurisdictional error on several bases, including that the adjudicator had failed to form an opinion that the payment claim had been served within the 12 month time period stipulated in s 13(4)(b) of the SOP Act (or, alternatively, had erred in forming that opinion) – whether s 13(4)(b) of the SOP Act is a "jurisdictional fact" in the first category or second category identified in Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 – held that s 13(4)(b) is within the second category – adjudicator did not form an opinion that the payment claim had been served within the period stipulated by s 13(4)(b) – adjudicator's determination void for jurisdictional error on that basis – not necessary to consider other alleged jurisdictional errors. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13, 13(4)(b), 14, 15, 16, 17, 20, 21, 26, 32 Building and Construction Industry Security of Payment Act 2009 (SA), s 12 Buil ding Industry Fairness (Security of Payment) Act 2017 (Qld), s 75 Cases Cited: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 248; [2005] NSWCA 391 Clarence Street Pty Ltd v Isis Projects Pty Ltd (2005) 64 NSWLR 448; [2005] NSWCA 391 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd (2005) 21 BCL 364; [2005] NSWCA 229 Estate Property Holdings Pty Ltd v Barclay Mowlem Construction Pty Ltd (2004) 61 NSWLR 515; [2004] NSWCA 393 FitzJersey v Atlas Construction Group [2017] NSWSC 340 Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 Joye Group Pty Ltd v Cemco Projects Pty Ltd [2021] NSWCA 211 Maxcon Constructions Pty Ltd v Vadasz (2018) 264 CLR 46; [2018] HCA 5 Maxcon Constructions v Vadasz (No. 2) (2017) 127 SASR 193; [2017] SASCFC 2 Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 Pacific General Securities Ltd v Soliman & Sons Pty Ltd (2006) 196 FLR 388; [2006] NSWSC 13 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v A2; Rv Magennis; R v Vaziri (2019) 93 ALJR 1106; [2019] HCA 35 SHA Premier Constructions Pty Ltd v Niclin Constructions Pty Ltd [2020] QSC 307 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 TWT Property Group Pty Ltd v Cenric Group Pty Ltd [2020] NSWSC 72 Category: Principal judgment Parties: EQ Constructions Pty Ltd (ACN 608 789 162) (Plaintiff) A-Civil Aust Pty Ltd (ACN 167 616 159) (First Defendant) Ms Jennifer Wyatt (Second Defendant) Representation: Counsel: Ms N Simpson with Mr R Size (Plaintiff) Mr L Gor (First Defendant)