Owners Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000

Supreme Court New South Wales

Medium Neutral Citation: Owners Strata Plan 61172 v Stratabuild Ltd [2011] NSWSC 1000 Hearing dates: 23 June 2011 Decision date: 25 August 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: For the reasons I have given I propose to declare that Adjudication Application No. 2011ADJT142 of the second defendant dated 11 April 2011 is void. The Parties are to bring in short minutes reflecting these reasons and I will then hear argument as to costs. Catchwords: ADMINISTRATIVE LAW - judicial review - jurisdictional error - natural justice or procedural fairness - relief - declaration - application for review of validity of an adjudication application pursuant to the Building and Construction Industry Security of Payment Act 1999 ('the Act') - declaration sought that the adjudicator's determination was void - application to have the adjudicator's decision quashed - adjudicator failed to consider adjudication respondent's submissions referred to in the reasons of the payment schedule - adjudicator misconstrued the Act and failed to accord procedural fairness to the plaintiff. Legislation Cited: Civil Procedure Act 2005 Building and Construction Industry Security of Payment Act 1999 (NSW) Supreme Court Act 1970 Strata Schemes Management Act Cases Cited: Chase Oyster Bar [2010] NSWCA 190 Clarence Street Pty Ltd v Isis Projects Pty Ltd [2005] NSWCA 391 Holmwood Holdings Pty Ltd v Halkat Electrical Contractors [2005] NSWSC 1129 Kirk v Industrial Court of NSW [2010] HCA 1 Multiplex Constructions v Luikens [2003] NSWSC 1140 Musico v Davenport [2003] NSWSC 977 Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd [2009] NSWCA 157 Timwin Constructions Pty Ltd v Facade Innovations Pty Ltd [2005] NSWSC 548 Category: Principal judgment Parties: The Owners - Strata Plan No 61172 (Plaintiff) Strata Build Pty Ltd ABN 23 120 624 679 (First Defendant) Neil Whittle (Second Defendant) Adjudicate Today Pty Ltd ABN 39 109 605 021 (Third Defendant) Representation: Counsel Mr M Christie SC with Mr L Shipway (for the plaintiff) Mr D Ash (for the Defendant) Solicitors Mills Oakley Lawyers (for the Plaintiff) MN Lawyers & Associates (for the first defendant) Mr Philip Davenport (for the second and third defendants) File Number(s): 128541 of 2011