Paynter Dixon v Tilston [2004] NSWSC 85

New South Wales Supreme Court

CITATION : Paynter Dixon v Tilston [2004] NSWSC 85 revised - 27/02/2004 HEARING DATE(S) : 12/02/04 JUDGMENT DATE : 26 February 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Summons dismissed with costs.

CATCHWORDS : Administrative Law - decision of adjudicator appointed under the Building & Construction Industry Security of Payment Act 1999 (NSW) - order in the nature of certiorari sought - held no jurisdictional error on part of adjudicator. - Trade Practices - misleading or deceptive conduct - whether attachment to payment claim constituted misleading or deceptive conduct - held no misleading or deceptive conduct. Transgrid v Seimens Limited [2004] NSWSC 21 at paragraphs 8 to 14 CASES CITED : Jemzone Pty Limited v Trytan Pty Limited [2002] NSWSC 395 at [44] Merman Pty Limited v Cockburn Cement Limited (1988) 84 ALR 521 PARTIES : Paynter Dixon Constructions Pty Limited v JF and CG Tilston Pty Limited and Anor FILE NUMBER(S) : SC 5251/03 COUNSEL : Mr M Christie for plaintiff SOLICITORS : Phillips Fox for plaintiff Mr K Tapsell of Watkins Tapsell for first defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Master Macready

Thursday 26 February 2004

5251/03 Paynter Dixon Constructions Pty Limited v J F & C G Tilston Pty Limited and Anor JUDGMENT 1 MASTER: In this matter the plaintiff seeks orders in the nature of certiorari and declarations in respect of a decision by the second defendant who was an adjudicator appointed pursuant to the Building and Construction Industry Security of Payment Act 1999 (NSW)(the Act). The plaintiff is a builder and the defendant is a subcontractor to that builder. A Judge of the Court has ordered that the whole of the proceedings be referred to me for hearing. The parties' claims 2 The plaintiff claims orders quashing the determination or, alternatively, declarations in respect of an adjudication made by the second defendant. As an alternative it seeks damages in respect of misleading and deceptive conduct by the defendant in making the adjudication application to the second defendant. There is a cross claim by the defendant but only paragraphs four and five are pressed and they are nothing more than consequential declarations in the event that the plaintiff is not successful.