Abacus v Davenport & Ors [2003] NSWSC 1027

New South Wales Supreme Court

CITATION : Abacus v Davenport & Ors [2003] NSWSC 1027 HEARING DATE(S) : 28 October 2003 JUDGMENT DATE : 14 November 2003

JUDGMENT OF : McDougall J at 1 DECISION : Paragraphs 56-58 of judgment

CATCHWORDS : ADMINISTRATIVE LAW - whether, and on what grounds, prerogative relief is available against the determination of an adjudicator under the Building & Construction Industry Security of Payment Act - jurisdictional error - errors of law on the face of the record LEGISLATION CITED : Building & Construction Industry Security of Payment Act 1999 Contractors Debts Act 1997 CASES CITED : Musico & Ors v Davenport & Ors [2003] NSW SC 977 Brodyn Pty Ltd v Davenport & Ors [2003] NSW SC 1019 Abacus Funds Management Limited PARTIES : v Phillip Davenport, Renascent Interiors & Refurbishers Pty Ltd and Adjudicate Today Pty Ltd FILE NUMBER(S) : SC 55044/03 COUNSEL : T J Davie (Plaintiff) M Christie (Second Defendant) Colin Biggers & Paisley (Plaintiff) Clayton Utz (Second Defendant) SOLICITORS : Phillip Davenport (First Defendant) submitting appearance

Adjudicate Today Pty Ltd (Third Defendant) submitting appearance

- IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

14 November 2003

55044/03 ABACUS FUNDS MANAGEMENT LIMITED v PHILLIP DAVENPORT & ORS JUDGMENT

HIS HONOUR:

Introduction 1 The plaintiff ("Abacus") engaged the second defendant ("Renascent") to carry out refurbishment of Abacus' premises at 109 Pitt Street, Sydney. On 25 August 2003, Renascent served on Abacus a payment claim made pursuant to s 13 of the Building & Construction Industry Security of Payment Act 1999 ("the Act"). The claim was in the sum of $1,750,844.48. 2 On 9 September 2003, Abacus served on Renascent a payment schedule under s 13 of the Act. That payment schedule was accompanied by a progress certificate of Morgan Moore & Associates Pty Ltd, the "architect" under the contract. The progress certificate was in the amount of $372,038.32 and it was that amount that Abacus, in its payment schedule, said that it proposed to pay. It is accepted that the amount of $372,038.32 has been paid to or for the benefit of Renascent (in the latter case, by payment to a subcontractor of Renascent, who had obtained and served on Abacus a debt certificate under the Contractors Debts Act 1997). 3 Renascent was dissatisfied with Abacus' response to the payment claim, and accordingly applied to the third defendant ("Adjudicate Today"), an authorised nominating authority under the Act, for the appointment of an adjudicator. Adjudicate Today referred the application to the first defendant ("Mr Davenport") under s 19(1) of the Act. Mr Davenport accepted the application and accordingly, by s 19(2), "is taken to have been appointed to determine the application". 4 Thereafter, Abacus lodged with Mr Davenport an adjudication response under s 20 of the Act. The Determination 5 Mr Davenport made a determination in writing on 3 October 2003. Adjudicate Today provided that determination to the parties on 9 October 2003. Mr Davenport determined that Renascent was entitled to a progress payment of $819,796.32, made up as follows: