Alucity Architectural Product Supply Pty Ltd -v- Australian Solutions Centre; Alucity Architectural Product Supply Pty Ltd -v- Paul J Hick [2016] NSWSC 608

Supreme Court New South Wales

Medium Neutral Citation: Alucity Architectural Product Supply Pty Ltd -v- Australian Solutions Centre; Alucity Architectural Product Supply Pty Ltd -v- Paul J Hick [2016] NSWSC 608 Hearing dates: 28 April 2016 Decision date: 13 May 2016 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Proceedings dismissed Catchwords: BUILDING AND CONSTRUCTION – EQUITY – UNJUST ENRICHMENT – total failure of consideration – Building and Construction Industry Security of Payment Act 1999 (NSW) s 13 (5), s 19, s 22, s 28, s 29 – where a claimant makes a payment claim and then applies for adjudication – where the respondent to the payment claim argues that it is invalid under s 13(5) because it is the second claim in relation to a reference date under a building contract – where the adjudication application is referred by the authorised nominating authority to an adjudicator who accepts appointment and then determines that the payment claim is invalid and as a result he has no jurisdiction to determine the claim – whether the fees paid to the nominating authority and adjudicator are recoverable by the claimant on the basis that there has been a total failure of consideration and the authority and the adjudicator will be unjustly enriched if they are entitled to retain the fees paid to them – HELD: the doctrine of total failure of consideration has no application in the circumstances - the authority and the adjudicator have not been enriched and it is not unjust for them to retain the fees – no claim for restitution lies Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Interpretation Act 1987 (NSW) Competition and Consumer Act 2010 (Cth) Category: Principal judgment Parties: Alucity Architectural Product Supply Pty Ltd - Plaintiff Australian Solutions Centre Pty Ltd Paul J Hick Representation: Counsel: P Davenport, Solicitor – Plaintiff F P Hicks – For the authority and the adjudicator