John Holland Pty Limited v Cardno MBK (NSW) Pty Limited & Ors [2004] NSWSC 258

New South Wales Supreme Court

CITATION : John Holland Pty Limited v Cardno MBK (NSW) Pty Limited & Ors [2004] NSWSC 258 HEARING DATE(S) : 31/03/04 JUDGMENT DATE : 20 April 2004

JURISDICTION: Equity Division Technology and Construction List JUDGMENT OF : Einstein J DECISION : Jurisdictional error and denial of natural justice shown to have occurred.

CATCHWORDS : Challenge to determination of adjudicator under the Building and Construction Industry Security of Payment Act 1999 - Statutory scheme dictates that the adjudication response be relevantly tied to the payment schedule [such that the adjudication response cannot include any reasons for withholding payment unless those reasons have already been included in the payment schedule - Section 20 (2B)] - Whether adjudication application should also be relevantly tied to the payment claim [such that the adjudication application cannot include reasons supporting the payment claim unless those reasons had been included in the payment claim] - Scheme of legislation - Adjudicator's powers - Adjudicator does not have the power to consider materials supplied by a claimant in its adjudication application which go outside [ie fall outside the ambit or scope of] the materials which were provided in the payment claim LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 Supreme Court Act Abacus v Davenport & Ors [2003] NSWSC 1027 Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 Brambles Australia Ltd v Davenport [2004] NSWSC 120 Brodyn Pty Limited t/as Time Cost and Quality (ACN 001 998 830) v Philip Davenport & Ors [2003] NSWSC 1019 Craig v The State of South Australia (1995) 184 CLR 163 CASES CITED : Hill v King (1993) 31 NSWLR 654 Multiplex Constructions Pty Limited v Luikens & Ors [2003] NSWSC 1140 Musico & Ors v Davenport & Ors [2003] NSWSC 977 Newcastle City Council v GIO General Ltd [1997] 191 CLR 85 Quasar Constructions v Demtech Pty Ltd [2004] NSWSC 116 R v Alley; Ex parte New South Wales Plumbers and Gas Fitters Employees' Union (1981) 153 CLR 376 Transgrid v Siemens Ltd [2004] NSWSC 87 John Holland Pty Limited (Plaintiff) PARTIES : Cardno MBK (NSW) Pty Limited (First Defendant) Graeme Robinson (Second Defendant) The Institute of Arbitrators and Mediators Australia (Third Defendant) FILE NUMBER(S) : SC 55002/04 Mr M Christie (Plaintiff) COUNSEL : Mr D Miller (First Defendant) No appearance for Second and Third Defendants Clayton Utz (Plaintiff) SOLICITORS : David Campbell-Williams Construction Lawyer Bradfield Scott (Sydney Agent) (First Defendant) Philips Fox (submitting appearance)