Chase Oyster Bar v Hamo Industries [2010] NSWSC 332

New South Wales Supreme Court

CITATION : Chase Oyster Bar v Hamo Industries [2010] NSWSC 332 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 21 April 2010 JURISDICTION : Equity Division Technology & Construction List

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 21 April 2010

(1) I make an order in accordance with the document initialled by me and dated today's date. (2) I direct that the answers to the separate questions be recorded. DECISION : (3) I direct the plaintiff to submit to my associate by 5pm on 22 April 2010 draft orders and directions covering, among other things, the terms of the issue to be referred to the Court of Appeal and the giving of notice under s 78B of the Judiciary Act 1903 (Cth). (4) I reserve the costs of the hearing to date. (5) I note that the plaintiff by counsel continues the usual undertaking as to damages and the first defendant accepts that its undertaking given to the Court on 29 March 2010 remains binding on it until the further order of the Court.

CATCHWORDS : BUILDING AND ENGINEERING CONTRACTS – challenge to adjudicator's determination – whether open for adjudicator to conclude contract was wholly in writing or relevant terms were written – where notice of intention to apply for adjudication of payment claim not given within time limit – whether jurisdictional error by adjudicator in concluding that notice was served within time limit – preliminary questions for determination – date of service on plaintiff of first defendant's payment claim – date for payment of progress payment – date by which first defendant was required to give notice of intention to seek adjudication – date on which actual notice was given – whether it was open to adjudicator to conclude that first defendant's notice had been served in accordance with statutory time requirements – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 17(2)(a), 31 - Interpretation Act 1987 (NSW) s 76. - PROCEDURE – Supreme Court procedure – New South Wales – removal of proceedings – where plaintiff submitted that reasoning of Court of Appeal in Brodyn could no longer be supported in light of subsequent High Court case – where point is one for Court of Appeal – issue to be referred to Court of Appeal for determination – Supreme Court Act 1970 (NSW) s 51(5).