Illawarra Retirement Trust v Denham Constructions Pty Ltd [2015] NSWSC 1173

Supreme Court New South Wales

Medium Neutral Citation: Illawarra Retirement Trust v Denham Constructions Pty Ltd [2015] NSWSC 1173 Hearing dates: 30 July 2015 Decision date: 20 August 2015 Jurisdiction: Equity - Technology and Construction List Before: McDougall J Decision: Summons dismissed with costs. Catchwords: BUILDING AND CONSTRUCTION – adjudication determinations – whether adjudicator failed to decide an essential element of contractor's claim – where principal claimed liquidated damages for delay, and took cash security to set-off those damages – where contractor claimed that extent of delay was reduced by extensions of time that it was or should have been allowed – where an earlier adjudication determination had found that principal's entitlement to liquidated damages was nil – where that position was re-affirmed in the present adjudication determination – result that it was unnecessary to decide contractor's submission as to extensions of time – consequence that adjudicator decided all that was necessary for the determination under review – alternative issue estoppel argument does not arise

BUILDING AND CONSTRUCTION – adjudication determinations – error of law on the face of the record – unavailability as a ground of review for determinations of adjudicators

BUILDING AND CONSTRUCTION – adjudication determinations – whether enforcement of statutory right can be restrained by permanent injunction – whether superintendent's certificate later issued, determined final rights of parties – where that certificate issued under a contractual clause which discharged liability only in relation to termination itself – whether liability in other respects discharged – consequence that both the statutory right to enforce the adjudication determination, and the contractual right to enforce the superintendent's certificate, remain available to the parties Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Dualcorp Pty Ltd v Remo Constructions Pty Ltd (2009) 74 NSWLR 190 Illawarra Retirement Trust v Denham Constructions Pty Ltd [2015] NSWSC 823 John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL 205 John Holland Pty Ltd v Roads and Traffic Authority of New South Wales (2007) 23 BCL 434 Martinek Holdings Pty Ltd v Reed Construction (Qld) Pty Ltd [2009] QCA 329 Musico v Davenport [2003] NSWSC 977 Watpac Constructions v Austin Group [2010] NSWSC 347 Category: Principal judgment Parties: Illawarra Retirement Trust (Plaintiff) Denham Constructions Pty Ltd (First Defendant) Ted Smithies (Second Defendant) Australian Solutions Centre Pty Ltd (Third Defendant) Representation: Counsel: