Fairfield City Council v Abergeldie Contractors Pty Ltd [2017] NSWSC 166

Supreme Court New South Wales

Medium Neutral Citation: Fairfield City Council v Abergeldie Contractors Pty Ltd [2017] NSWSC 166 Hearing dates: 27 February 2017 Decision date: 06 March 2017 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: 1. Declare that the first defendant's purported Payment Claim dated 25 November 2016 was not a payment claim within the meaning of section 13 of the Building and Construction Industry Security of Payment Act 1999 (NSW).

2. An order in the nature of certiorari quashing the determination of the third defendant dated 31 January 2017 for Adjudication Reference Number 2016RINSW38.

3. An order that the amount held in court being $1,286,603.96, together with any interest accrued thereon, is to be paid to the plaintiff.

4. The first defendant to pay the plaintiff's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW – judicial review – reviewable decisions and conduct – whether jurisdictional error in making Adjudicator Determination

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – service of payment claim in respect of reference date

CONTRACTS – construction contract – interpretation of contractual terms – "date of practical completion" – when "practical completion" occurred Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd [2016] HCA 52 Category: Principal judgment Parties: Fairfield City Council (Plaintiff) Abergeldie Contractors Pty Ltd (First Defendant) Resolution Institute (Second Defendant) Robert Sundercombe (Third Defendant) Representation: Counsel: B DeBuse (Plaintiff) M Ashhurst SC (First Defendant) Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant)