Williams v Concreting Services Pty Ltd [2013] NSWSC 366

Supreme Court New South Wales

Medium Neutral Citation: Williams v Concreting Services Pty Ltd [2013] NSWSC 366 Hearing dates: 7 March and 12 April 2013; written submissions 19 April 2013 Decision date: 22 April 2013 Jurisdiction: Equity Division - Technology and Construction List Before: Stevenson J Decision: Determination void Catchwords: CONTRACT - identification of counterparty to a contract or arrangement BUILDING AND CONSTRUCTION - adjudication - work done pursuant to construction contract - whether determination void - jurisdictional error Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Environmental Planning and Assessment Regulation 2000 Cases Cited: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Category: Principal judgment Parties: Lloyd Williams (plaintiff) Concreting Services Pty Ltd (first defendant) Alan Stapleton (second defendant) Representation: Counsel: M Painter with T Glover (plaintiff) T O Bland (first defendant) Solicitors: Adams and Partners Lawyers (plaintiff) Lou Baker & Associates (defendants) File Number(s): SC 2013/43294 Publication restriction: Nil

Judgment

Introduction 1The matter for consideration in these proceedings is the identity of the counterparty to a contract or an arrangement ("the Contract") pursuant to which the first defendant, Concreting Services Pty Ltd ("Concreting"), performed work at a site at Ropes Crossing in Western Sydney ("the Site"). 2On 18 June 2012, Childcare Specialists Australia Pty Ltd ("CSA") entered into a contract with the proprietor of the Site to construct a childcare centre. 3The plaintiff, Mr Lloyd Williams, is the sole director of CSA. 4The dispute in these proceedings arises out of a determination ("the Determination") made on 7 January 2013 by an adjudicator ("the Adjudicator") pursuant to the Building and Construction Industry Security of Payment Act 1999 ("the Act") that Mr Williams was (rather than CSA) obliged to pay Concreting $242,903.42 for work done by Concreting at the Site. 5The Adjudicator found that such work was done pursuant to a "construction contract" for the purposes of s 3 of the Act, between Mr Williams and Concreting. 6Mr Williams contended before the Adjudicator, and before me, that any "construction contract" in relation to work done by Concreting at the Site was between Concreting and CSA, and not between Concreting and Mr Williams. 7The matter for me to determine is whether Mr Williams or CSA was the counterparty to the Contract pursuant to which Concreting did work at the Site. It is common ground that if the true position is that CSA, not Mr Williams, was the counterparty, the adjudicator had no jurisdiction under the Act, and the Determination is void. 8No other challenge is made to the Determination.