Hawkesbury City Council v The Civil Experts Pty Ltd trading as TCE Contracting [2023] NSWSC 962

Supreme Court New South Wales

Medium Neutral Citation: Hawkesbury City Council v The Civil Experts Pty Ltd trading as TCE Contracting [2023] NSWSC 962 Hearing dates: 3 August 2023 Decision date: 17 August 2023 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) The summons be dismissed with costs; (2) The amount paid into Court by the plaintiff on 6 July 2023 and any interest thereon be paid to the defendant. Catchwords: BUILDING AND CONSTRUCTION — Adjudication — Security of Payment Act (SOPA) — Where plaintiff alleges the amount of the claim for offsite overheads and the declaration that the claim was made under the Act were unclear — Whether claimant engaged in misleading and deceptive conduct — Notice of adjudication application made clear claim was made under the Act BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Security of Payment Act (SOPA) — Whether claim for offsite overhead costs relate to construction work or related goods and services — Adjudicator's interpretation of what "cost" means under the construction contract is not reviewable — Whether adjudicator's calculation of offsite overhead costs was unreasonable or capricious — Adjudicator's acceptance of claimant's unchallenged evidence and submissions was reasonable Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Cases Cited: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Seymour Whyte Constructions Pty Ltd v Oswald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 317 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Walter Construction Group Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266 Category: Principal judgment Parties: Hawkesbury City Council (Plaintiff) The Civil Experts Pty Ltd trading as TCE Contracting (First Defendant) Adjudicate Today Pty Ltd (Second Defendant) Scott Pettersson (Third Defendant) Representation: Counsel: B DeBuse (Plaintiff) M Christie SC with D Hand (First Defendant)