Lanskey v Noxequin [2005] NSWSC 963

New South Wales Supreme Court

CITATION : Lanskey v Noxequin [2005] NSWSC 963

HEARING DATE(S) : 22/09/2005

JUDGMENT DATE : 3 November 2005

JURISDICTION : Technology & Construction List

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Building and Construction. Determination under the Building & Construction Industry Security of Payment Act 1999. Failure of Adjudicator to consider submissions of plaintiff. Adjudication determining part of the matter on a basis not presented by the parties for determination. Adjudicator's failure to engage in a bona fide exercise of power and to accord the parties natural justice. Determination declared void.

PARTIES : Lanskey Constructions Pty Ltd v Noxequin Pty Limited (In Liquidation)

FILE NUMBER(S) : SC 55052 of 2005

Mr M. Rudge & Mr D. Robertson for plaintiff COUNSEL : Mr S. Jacobs for 2nd and 3rd defendants

Gadens Lawyers SOLICITORS : Philip Davenport

LOWER COURT JURISDICTION :

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

Associate Justice Macready

Thursday 3 November 2005

55052 of 2005 LANSKEY CONSTRUCTIONS PTY LIMITED v NOXEQUIN PTY LIMITED (IN LIQUIDATION) T/AS FYNA FORMWORK, ANTHONY VEGHELYI AND MEDIATE TODAY T/AS ADJUDICATE TODAY JUDGMENT 1 HIS HONOUR: The plaintiff is a builder who was engaged in the construction of a project known as Northgate Apartments in Wollongong. The first defendant was a sub-contractor to the plaintiff engaged to do the formwork. The sub-contract was entered into in March 2003. The second defendant, Mr Anthony Veghelyi, was the Adjudicator who carried out an Adjudication under the Act and the third defendant, Mediate Today, was the body, which appointed him. The second and third defendants have taken no part in the proceedings and submit to any orders except orders as to costs. A Judge of the Court has referred the proceedings to me for hearing. 2 The present dispute between the parties arises out of a payment claim made by the defendant against the plaintiff on the 4 April 2005. The payment claim sought a final payment and release of retention monies totalling $145,849.40 inclusive of GST. This was responded to by a very detailed payment schedule from the plaintiff dated 15 April 2005. The plaintiff's payment schedule rejected the defendant's claims and rather than any monies being owing by it to the defendant claimed that the defendant owed it an amount of $21,481.92 inclusive of GST. 3 The defendant lodged an Adjudication Application and the plaintiff lodged its Adjudication Response. Both were detailed documents. On 17 June 2005 the Adjudicator issued his determination dated 27 May 2005. He found that the plaintiff was obliged to pay the first defendant the amount of its claim, which inclusive of GST was $160,434.34. The plaintiff's claims 4 The plaintiff seeks orders declaring that the determination is void having regard to the Adjudicator's treatment of: