EMERGENCY SERVICES SUPERANNUATION BOARD v DAVENPORT & ANOR [2004] NSWSC 697

New South Wales Supreme Court

CITATION : EMERGENCY SERVICES SUPERANNUATION BOARD v DAVENPORT & ANOR [2004] NSWSC 697 HEARING DATE(S) : 21/07/2004 (judgment given 22 July 2004 and revised on 26 July 2004) JUDGMENT DATE : 22 July 2004 JURISDICTION: EQUITY JUDGMENT OF : McDougall J DECISION : (1) I continue, up until the making of final orders in these proceedings, or the further order of the Court, the orders made on 21 July 2004 and continued on 22 July 2004.; (2) I stand the proceedings over to 9.30 am on Tuesday, 27 July 2004 for the making of final orders.; (3) I give the parties leave to approach on short notice.

CATCHWORDS : BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - Whether adjudication determination should be quashed - Where alleged that adjudicator determined claim on basis explicitly disavowed by second defendant and not said to be relevant by plaintiff without giving plaintiff notice of intention to do so - Whether determination vitiated by denial of natural justice - Whether determination vitiated by adjudicator's alleged failure to consider relevant provision of contract and plaintiff's submissions thereon - s22(2)(b) - Whether payment claim compiled with s 13(2)(a) of the Act - Whether discretion to grant prerogative relief should be exrcised LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW) Multiplex Construction Pty Ltd v Luikens [2003] NSWSC 1140 Musico v Davenport [2003] NSWSC 1019 CASES CITED : Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171 Stead v State Government Insurance Commission (1986)161 CLR 141 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Brodyn Pty Ltd v Davenport [2004]NSWSC 304 EMERGENCY SERVICES SUPERANNUATION BOARD - Plaintiff PARTIES : PHILLIP DAVENPORT - First Defendant LIPMAN PTY LTD - Second Defendant FILE NUMBER(S) : SC 30054/04 R.J. Cheney - Plaintiff COUNSEL : 1st Defendant - Submitting Appearance S. Goldstein - Second Defendant Holding Redlich - Plaintiff SOLICITORS : 1st Defendant - Submitting Appearance Cowley Hearne - Second Defendant