Rubana Holdings Pty Limited v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405

New South Wales Supreme Court

CITATION : Rubana Holdings Pty Limited v 3D Commercial Interiors Pty Ltd [2008] NSWSC 1405

HEARING DATE(S) : 12 December 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 12 December 2008

DECISION : See paras [42] to [44] of the judgment.

CATCHWORDS : BUILDING AND CONSTRUCTION - Adjudication application - whether determination void - whether adjudicator lacked jurisdiction to deal with application - abuse of process - whether a claimant under the Act can seek to enforce its claim concurrently by proceedings in court and by adjudication - Building and Construction Industry Security of Payment Act 1999.

LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999

Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 CASES CITED : Falgat Constructions Pty Ltd v Equity Australia Corp Pty Ltd [2005] NSWCA 49 Holdmark Developers v GJ Formwork [2004] NSWSC 905 Vince Schokman v Xception Construction Pty Ltd [2005] NSWSC 297

PARTIES : Rubana Holdings Pty Limited (Plaintiff) 3D Commercial Interiors Pty Limited (Defendant)

FILE NUMBER(S) : SC 55064/08

COUNSEL : T Bland (Plaintiff) S Goldstein (Defendant)

SOLICITORS : LAS Lawyers & Consultants (Plaintiff) Leonard Legal (Defendant)

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

McDOUGALL J

12 December 2008 ex tempore (revised 12 December 2008)

55064/08 RUBANA HOLDINGS PTY LIMITED v 3D COMMERCIAL INTERIORS PTY LIMITED JUDGMENT 1 HIS HONOUR: The plaintiff (Rubana) and the defendant (3D) were parties to a construction contract made in about January 2007. Pursuant to that contract, 3D undertook to carry out construction work consisting of renovations to premises owned by Rubana known as the Westmead Tavern. Background 2 There are proceedings on foot in the District Court of New South Wales between Rubana as plaintiff and 3D as defendant. In those proceedings, Rubana claims damages for defective and incomplete work and other matters. 3D defends the proceedings on a number of bases. One of those bases is a defence by way of set-off, relating to a claim of (in round figures) $269,000 said to be outstanding for construction work carried out. 3D has also cross-claimed for essentially the same amount. (There is a difference of a few thousand dollars but there is no doubt that the subject matter of the cross-claim, the subject matter of the defence by way of set-off and the subject matter of the payment claims to which I shall turn in a moment are in substance the same.) 3 3D has served some five payment claims under the Building and Construction Industry Security of Payment Act 1999 (the Act). The first of those claims was served on about 2 August 2007. The second was served on about 24 September 2007. The third was served on about 25 October 2007. The fourth was served on about 14 March 2008. The fifth was served on about 3 June 2008. 4 The District Court proceedings to which I have referred were commenced by the filing of a statement of claim on 17 December 2007. The defence to which I have referred was filed on 17 April 2008. The cross-claim to which I have referred was filed on 26 June 2008. 5 As to the first payment claim: Rubana provided a payment schedule which asserted that no amount was owing by it to 3D; indeed, Rubana asserted, there was an amount owing to it by 3D. 3D purported to refer the dispute thereby constituted to adjudication. An adjudicator, Mr Stojanovksi, was nominated and accepted appointment. 3D sought to "withdraw" its adjudication application. Rubana protested that this could not be done. Nonetheless, Mr Stojanovski allowed, or purported to allow, 3D to withdraw the application. 6 Rubana provided payment schedules to each of the subsequent payment claims. Since the payment claims were either identical or substantially so, the payment schedule provided was in each case in effect the payment schedule originally provided. 7 As to the last payment claim and payment schedule: the dispute thereby constituted was referred to adjudication. An adjudicator, Mr O'Brien, was nominated and accepted appointment. He determined the matter in favour of 3D, by an adjudication determination that concluded that the entire amount sought (in round figures, $265,000) was payable.