Accrete Constructions v Kinsley Constructions [2005] NSWLC 14

Local Court of New South Wales

CITATION: Accrete Constructions v Kinsley Constructions [2005] NSWLC 14 JURISDICTION: Civil PARTIES: Accrete Constructions Pty Ltd Kinsley Constructions Pty Ltd FILE NUMBER: 11466/05 PLACE OF HEARING: Downing Centre DATE OF DECISION: 02/10/2006 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Procedure - Motion to set aside judgment - Whether judgment entered under Building and Construction Industry Security of Payment Act (BCISP Act) irregularly - Whether BCISP Act requires qualifications of adjudicators to be prescribed by regulation - Whether adjudicators to be prescribed by regulation - Whether adjudicator acted within the scope of authority in dealing with contract and progress payment claim - Whether assessed claim on its merits LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999 ss 7, 9- 12, 13, 17, 18, 22, 23, 24, 25. Australian Boot Trade Employees Federation v Whybrow & Co (1930) 11 CLR 311 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 CASES CITED: Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337 Co -ordinated Constructions v JM Hargreaves [2005] NSWCA 228 Grey v Pearson (1857) 10 ER 1216 REPRESENTATION: Mr J.W Dodd (Counsel) instructed by Hills Legal for applicant Mr V.F Kerr (Counsel) instructed by Piggott Stimsom Ratner Thom Lawyers for respondent ORDERS: 1. The motion is dismissed. 2. The applicant is to pay the respondent's costs of disposal of the motion in a sum agreed or assessed.

JUDGMENT 1. By Notice of Motion, the applicant, Kinsley Constructions Pty Ltd ("Kinsley"), seeks to have set aside a judgment entered against it pursuant to an adjudication under the Building and Construction Industry Security of Payment Act 1999 ("the Act") on the basis that the judgment was entered irregularly: s.63 Civil Procedure Act 2005 and Rule 36.15.