Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194

Supreme Court New South Wales

Medium Neutral Citation: Parkview Constructions Pty Limited v Total Lifestyle Windows Pty Ltd t/a Total Concept Group [2017] NSWSC 194 Hearing dates: 22 February 2017 Decision date: 07 March 2017 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: Adjudication determination to be quashed. Injunctions to be made restraining relying on it. Catchwords: BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) – ss 17(3), 17(5) and 19 – Interpretation Act 1987 (NSW) ss21(1) – where an adjudication application made by the claimant differs from that referred by the authorised nominating authority to the adjudicator – where an adjudication application served on the respondent is not a copy of that referred to the adjudicator – where a claimant delivers a Universal Serial Bus (USB stick) containing an adjudication application – HELD: the adjudicator did not have jurisdiction to determine the adjudication application referred to him – HELD: delivery of USB stick is not service of a copy in writing until it is opened by the recipient – HELD: adjudication determination to be quashed. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Agricultural and Rural Finance v Gardiner (2008) 238 CLR 570 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Capper v Thorpe (1998) 194 CLR 342 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1Qd R 265 Shorten v David Hurst Constructions Pty. Ltd. [2008] NSWSC 546 Timwin Constructions Pty Ltd v Façade Innovations Pty Ltd [2005] NSWSC 548 Category: Principal judgment Parties: Parkview Constructions Pty Limited - Plaintiff Total Lifestyle Windows Pty Ltd t/a total Concept Group - First Defendant Kenneth Spain - Second Defendant Representation: Counsel: M. Christie SC with A.R.R. Vincent - Plaintiff D.A. Savage QC with M.R. Bland - First Defendant Submitting appearance - Second Defendant