NSW Caselaw
New South Wales Supreme Court
CITATION : Plaza West Pty Limited v Simon's Earthworks (NSW) Pty Limited [2008] NSWSC 753
HEARING DATE(S) : 14 & 15 July 2008 JUDGMENT OF : Hammerschlag J
EX TEMPORE JUDGMENT DATE : 15 July 2008
DECISION : Summons Dismissed
CATCHWORDS : BUILDING AND CONSTRUCTION INDUSTRY SECURITY OF PAYMENT ACT 1999 (NSW) s 9(a) - Requirement that progress payment be calculated in accordance with the terms of the contract - adjudicator determines amount to be calculated by reference to a provision which is a mechanics provision rather than according to criteria set by contract - approach to calculation a matter for adjudicator - adjudication determination not invalid even if adjudicator makes error of law provided he makes bona fide attempt to exercise the power conferred by the Act - no denial of natural justice by adjudicator in not dealing with further submissions of respondent where to do so is unnecessary by reason of acceptance of claimant's primary submission - adjudication valid - claimant obtains judgment in District Court based on adjudication - respondent seeks repayment of part alleged to be liability of claimant to sub-contractor where respondent alleges it paid sub-contractor directly - failure to establish fact of payment - properly matter for cross claim under s 32(3)(b) of the Act - or matter for District Court with respect to its own judgment
LEGISLATION CITED : Building and Construction Industry Security of Payment Act 1999 (NSW)
Transgrid v Siemens Ltd (2004) 61 NSWLR 521 John Holland Pty Ltd v Roads and Traffic Authority of NSW (2007) 23 BCL 205; [2007] NSWCA 19 Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 The Minister for Commerce (formerly Public Works and Services) v Contrax Plumbing (NSW) Pty Ltd [2005] NSWCA 142 CASES CITED : Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Downer Construction (Australia) Pty Ltd v Energy Australia [2007] NSWCA 49 Bitannia Pty Ltd & Anor v Parkline Constructions Pty Ltd (2006) 67 NSWLR 9 Reiby Street Apartments Pty Ltd v Winterton Constructions Pty Ltd [2006] NSWSC 375 Firedam Civil Engineering Pty Ltd v KJP Construction Pty Ltd [2007] NSWSC 1162 Brasher v O'Hehir [2005] NSWSC 1194
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