Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413

Supreme Court New South Wales

Medium Neutral Citation: Patrick Stevedores Operations No. 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413 Hearing dates: 29/09/2014 Decision date: 16 October 2014 Before: Ball J Decision: 1. Declare that the determination made by the third defendant dated 18 August 2014 is void. 2. Declare that the determination made by the second defendant dated 10 September 2014 is void. 3. Direct that the money paid into court by the plaintiff be released to the plaintiff forthwith. 4. The first defendant pay the plaintiff's costs. Catchwords: BUILDING AND CONSTRUCTION - Building and Construction Industry Security of Payment Act 1999 (NSW) - application for declarations that two adjudication determinations concerning same payment claim void - validity of payment claim - whether one-off payment due under contract after termination a "progress payment" capable of supporting a payment claim - whether reference date fixed by contract or s 8(2)(b) - effect of termination before contractual reference date arises - whether party entitled to withdraw adjudication application under s 26 and file new adjudication application - whether jurisdictional error where adjudicator failed to consider all claims and submissions - whether denial of natural justice where adjudicator decided matter on basis not put by either party Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 4, 8, 9, 13, 21, 22, 26, 26A, 26B Interpretation Act 1987 (NSW), s 6 Cases Cited: Allpro Building Services Pty Ltd v C&V Engineering Services Pty Ltd [2009] NSWSC 1247 Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421 Cornerstone Danks Street Pty Ltd v Parkview Constructions Pty Ltd [2014] NSWSC 866 Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116; (2004) 20 BCL 276 Category: Principal judgment Parties: Patrick Stevedores Operations No. 2 Pty Ltd (Plaintiff) McConnell Dowell Constructors (Aust) Pty Ltd (First Defendant) Tim Sullivan (Second Defendant) Richard Nixon (Third Defendant) Representation: Counsel: J P Rowland (Solicitor) with Ms F Ashworth F Douglas QC with Ms F M T Shaw (First Defendant) Submitting Appearances (Second and Third Defendant) Solicitors: Clayton Utz (Plaintiff) Norton Rose Fulbright Australia (First Defendant) File Number(s): 2014/273561 Publication restriction: N/A