Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215 Hearing dates: 19 and 20 July 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Before: Ward ACJ at [1]; Payne JA at [2]; Basten AJA at [203] Decision: In the York Street proceedings (2022/236818): (1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal. (3) Cross-appeal allowed. (4) Set aside orders 1(a) and (b) and 2(a) of the Court below made on 20 April 2023. (5) In their place: (a) order pursuant to s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) that the adjudication determination dated 2 August 2022 (ABCDRS NSW 454), being affected by jurisdictional error, be set aside in the amount over and above $1,757,863.46; (b) order pursuant to s 32A of the Building and Construction Industry Security of Payment Act 1999 (NSW) that the adjudication determination dated 2 August 2022 (ABCDRS NSW 454), not being affected by jurisdictional error, be confirmed as the Adjudicated Amount of $1,757,863.46. (6) Order that the appellant pay to the respondent the amount of $718,284.08, together with all interest earned thereon until paid out of court on or about 5 May 2023, together with interest from the date of payment out of court, until the date of payment to the respondent. (7) Order that 7 days after the making of this order, the remaining funds paid into Court, including any interest accrued thereon, be paid out to the respondent. (8) The cross-respondent to pay the cross-appellant's costs of the cross-appeal. In the Elizabeth Bay proceedings (2022/217806): (1) Appeal dismissed. (2) Appellant to pay the respondent's costs of the appeal. (3) Cross-appeal allowed. (4) Set aside order 1(b) of the Court below made on 20 April 2023. (5) Order that the appellant pay the respondent the amount of $11,650.56, together with all interest earned thereon until paid out of court on about 5 May 2023, together with interest from the date of payment out of court, until the date of payment to the respondent. (6) Order that 7 days after the making of this order, the remaining funds paid into Court, including any interest accrued thereon, be paid out to the respondent. (7) The cross-respondent to pay the cross-appellant's costs of the cross-appeal. Catchwords: ADMINISTRATIVE LAW – Judicial review – content of obligation "to consider" – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2)