Broad Construction Services (NSW) Pty Limited v Michael Vadasz [2008] NSWSC 1057

New South Wales Supreme Court

CITATION : Broad Construction Services (NSW) Pty Limited v Michael Vadasz [2008] NSWSC 1057 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21 August 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 21 August 2008

DECISION : Order that the summons be dismissed. Order the plaintiff to pay the first defendant's costs of the proceedings.

CATCHWORDS : BUILDING AND ENGINEERING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 - adjudication determination - adjudicator did not consider expert's report - whether denial of procedural fairness - whether report constituted a submission 'duly made' in support of payment schedule.

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

CASES CITED : Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL 205

Broad Construction Services (NSW) Pty Limited (ABN 58 097 831 411) (Plaintiff) PARTIES : Michael Vadasz t/as Australasian Piling Company (First Defendant)

FILE NUMBER(S) : SC 55035/08

COUNSEL : A Kostopoulos (Plaintiff) S Goldstein (First Defendant)

SOLICITORS : Kreisson Legal (Plaintiff) CCS Legal Pty Limited (First Defendant)

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

McDOUGALL J

21 August 2008 ex tempore (revised – 26 August 2008)

55035/08 BROAD CONSTRUCTION SERVICES (NSW) PTY LIMITED v MICHAEL VADASZ TRADING AS AUSTRALASIAN PILING CO & ORS JUDGMENT 1 HIS HONOUR: The plaintiff (Broad) and the first defendant (Mr Vadasz) made a subcontract on 6 September 2007. By that subcontract Mr Vadasz agreed to design, supply and install piling for a project at Kempsey known as the Riverside Plaza Supermarket Project. That contract has now been executed. Mr Vadasz claimed to be entitled to an amount of $534,600 for costs (including, I think, delay costs) associated with what he says were latent conditions on the site. Broad disputed that claim. It was referred to adjudication under the provisions of the Building and Construction Industry Security of Payment Act 1999 (the Act). The second defendant (the adjudicator) gave a determination in favour of Mr Vadasz. Broad complains that the adjudicator's determination is void because, it says, he denied it natural justice or, alternatively, failed to exercise the powers given to him by the Act in good faith. The complaint is based upon the adjudicator's refusal to consider, as a ground for rejecting the claim, a report made by Douglas Partners, a firm of geotechnical engineers, on 24 April 2008.