Supreme Court New South Wales Medium Neutral Citation: Regal Consulting Services Pty Ltd v All Seasons Air Pty Ltd [2017] NSWSC 613 Hearing dates: 11/05/2017 Date of orders: 19 May 2017 Decision date: 19 May 2017 Jurisdiction: Equity Before: McDougall J Decision: Plaintiff entitled to relief sought. Parties to bring in short minutes of order. Catchwords: BUILDING AND CONSTRUCTION – CONTRACTS – operation of Building and Construction Industry Security of Payment Act 1999 (NSW), s 8, s 13 – where contract fixed dates for making progress claims and deemed claims made earlier to be made on that date – where progress claim served 8 days before specified date – where specified date for progress claims are also "reference dates" - operation of deeming provision in construction contract – adjudication – whether jurisdictional error – whether there was a reference date for the payment claim – PROCEDURE – whether plaintiff required leave – UCPR r 59.10(1), (5) – where proceedings not commenced within three months of the adjudicator's determination Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53 Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [2016] HCA 52 St Aubyn v Attorney General [1952] AC 15 Texts Cited: Johnson's Dictionary of the English Language (1755 edition Shorter Oxford English Dictionary Category: Principal judgment Parties: Regal Consulting Services Pty Ltd (Plaintiff) All Seasons Air Pty Ltd (First Defendant) Melissa McCurdie (Second Defendant) Representation: Counsel: S Robertson (Plaintiff) D M Macfarlane (First Defendant) Solicitors: Colin Biggers & Paisley Pty Ltd (Plaintiff) One Group Legal Pty Limited (First Defendant) File Number(s): 2017/32925 Judgment 1. HIS HONOUR: On 8 June 2015, the plaintiff (Regal) and the first defendant (All Seasons) made a subcontract (the contract) under which All Seasons undertook to perform for Regal mechanical ventilation and air conditioning work for a residential development at Waitara. There is no doubt that the contract was a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Security of Payment Act). 2. The contract provided [1] that progress claims should be made monthly, on the 20th day of each month. It provided, further, that progress claims made before the 20th day of any month "shall be deemed to have been made on the date for making that claim". 3. On 12 July 2016, All Seasons made a progress claim seeking payment of (in round figures) $44,500 inclusive of GST. The progress claim purported to be also a payment claim for the purposes of s 13(1) of the Security of Payment Act. 4. Regal provided a payment schedule in which it disputed liability for the whole of the claim. The bases on which it disputed liability included that there was no available reference date, because All Seasons had already served a payment claim based on the reference date 20 June 2016 [2] , and the next reference date (20 July 2016) had not accrued at the time All Seasons served the payment claim. 5. All Season's payment claim was referred to the second defendant (the adjudicator) for adjudication. The adjudicator concluded that she had jurisdiction to deal with the dispute. She determined that the adjudicated amount was the claimed amount. In due course, All Seasons procured an adjudication certificate [3] and filed that adjudication certificate in the Local Court at Burwood, thereby obtaining a judgment for debt for the amount certified [4] . 6. In these proceedings, Regal contends that the adjudicator lacked jurisdiction to deal with the payment claim, on the basis that there was no available reference date to support it. Regal relies on the decision of the High Court of Australia in Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd [5] . The issues 1. There were three issues argued: 1. was All Seasons entitled to a progress payment as at 12 July 2016, in circumstances where it had made a payment claim for the reference date accruing (on 20 June 2016) in the previous month, and where the next reference date (20 July 2016) had not accrued at the time its progress claim was served? 2. These proceedings not having been commenced within three months of the date of the adjudicator's determination, did Regal require leave pursuant to UCPR r 59.10(2)? 3. If Regal did require leave, should it be granted? 1. I should note that the question of jurisdiction was not raised before the adjudicator with the clarity that it has been raised in these proceedings. That is hardly surprising, since the appeal in Southern Han had not been argued when the adjudicator made her determination on 30 August 2016 [6] . However, All Seasons did not contend before me that Regal should be denied relief on the basis that the point had not been raised clearly before the adjudicator. Relevant provisions of the contract 1. Clause 37.1 deals with "Progress claims". So far as it is relevant, it states: [All Seasons] shall claim payment progressively in accordance with Item 37. An early progress claim shall be deemed to have been made on the date for making that claim. 1. Item 37 states that progress claims are to be made "On the 20th day of the month". Relevant provisions of the Security of Payment Act 1. The objects of the Security of Payment Act are set out in s 3: 3 Object of Act (1) The object of this Act is to ensure that any person who undertakes to carry out construction work (or who undertakes to supply related goods and services) under a construction contract is entitled to receive, and is able to recover, progress payments in relation to the carrying out of that work and the supplying of those goods and services. (2) The means by which this Act ensures that a person is entitled to receive a progress payment is by granting a statutory entitlement to such a payment regardless of whether the relevant construction contract makes provision for progress payments. (3) The means by which this Act ensures that a person is able to recover a progress payment is by establishing a procedure that involves: (a) the making of a payment claim by the person claiming payment, and (b) the provision of a payment schedule by the person by whom the payment is payable, and (c) the referral of any disputed claim to an adjudicator for determination, and (d) the payment of the progress payment so determined. (4) It is intended that this Act does not limit: (a) any other entitlement that a claimant may have under a construction contract, or (b) any other remedy that a claimant may have for recovering any such other entitlement. 1. The expressions "payment claim" and "progress payment" are defined in s 4(1): 4 Definitions (1) In this Act: … "payment claim" means a claim referred to in section 13. "payment schedule" means a schedule referred to in section 14. … 1. Section 8 gives a statutory right to progress payments: 8 Rights to progress payments (1) On and from each reference date under a construction contract, a person: (a) who has undertaken to carry out construction work under the contract, or (b) who has undertaken to supply related goods and services under the contract, is entitled to a progress payment. (2) In this section, "reference date" , in relation to a construction contract, means: (a) a date determined by or in accordance with the terms of the contract as the date on which a claim for a progress payment may be made in relation to work carried out or undertaken to be carried out (or related goods and services supplied or undertaken to be supplied) under the contract, or (b) if the contract makes no express provision with respect to the matter-the last day of the named month in which the construction work was first carried out (or the related goods and services were first supplied) under the contract and the last day of each subsequent named month. 1. Section 13 sets out how a payment claim is to be made: 13 Payment claims (1) A person referred to in section 8 (1) who is or who claims to be entitled to a progress payment (the "claimant" ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment. (2) A payment claim: (a) must identify the construction work (or related goods and services) to which the progress payment relates, and (b) must indicate the amount of the progress payment that the claimant claims to be due (the "claimed amount" ), and (c) if the construction contract is connected with an exempt residential construction contract, must state that it is made under this Act. (3) The claimed amount may include any amount: (a) that the respondent is liable to pay the claimant under section 27 (2A), or (b) that is held under the construction contract by the respondent and that the claimant claims is due for release. (4) A payment claim may be served only within: (a) the period determined by or in accordance with the terms of the construction contract, or (b) the period of 12 months after the construction work to which the claim relates was last carried out (or the related goods and services to which the claim relates were last supplied), whichever is the later. (5) A claimant cannot serve more than one payment claim in respect of each reference date under the construction contract. (6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim. (7) A head contractor must not serve a payment claim on the principal unless the claim is accompanied by a supporting statement that indicates that it relates to that payment claim. Maximum penalty: 200 penalty units. (8) A head contractor must not serve a payment claim on the principal accompanied by a supporting statement knowing that the statement is false or misleading in a material particular in the particular circumstances. Maximum penalty: 200 penalty units or 3 months imprisonment, or both. (9) In this section: "supporting statement" means a statement that is in the form prescribed by the regulations and (without limitation) that includes a declaration to the effect that all subcontractors, if any, have been paid all amounts that have become due and payable in relation to the construction work concerned. 1. It is settled law that the determinations of adjudicators under the Security of Payment Act may be reviewed in this court for what may conveniently be called "jurisdictional error", but not otherwise [7] . Neither party contended to the contrary (I say "neither party" because the adjudicator, very properly, submitted save as to costs). The decision in Southern Han 1. The relevant facts in Southern Han are simple. Southern Han and the respondent (Lewence) were parties to a construction contract. Southern Han purported to take the work out of Lewence's hands pursuant to cl 39.4 of the contract. If Southern Han had been entitled to do so, the effect would have been to suspend payment until, in effect, the costs of completion of the work could be ascertained. Lewence claimed that by so acting, Southern Han had repudiated the contract. It purported to treat that repudiation as discharging it from further performance, and terminated the contract accordingly. Thereafter, Lewence served on Southern Han a document purporting to be a payment claim: a claim for work carried out up until 27 October 2014 (the date on which Southern Han purported to exercise its contractual right to take the contract works out of Lewence's hands) [8] . 2. In those circumstances, the questions for decision were [9] : 1. is the existence of a reference date under a construction contract a precondition to the making of a valid payment claim? 2. Was there an available reference date? 1. Dealing with the first question, the court [10] held at [61] that for the purposes of s 13(1), the "person referred to in s 8(1) who is or who claims to be entitled to a progress payment" identifies a person whom s 8(1) makes entitled to a progress payment. Their Honours said, further, that an entitlement to a progress payment existed where that person had undertaken to carry out construction work [11] . However, their Honours said [12] , the s 8(1) entitlement existed "only on and from each reference date under the construction contract". Thus, their Honours concluded [13] , the existence of a reference date was a precondition to the making of a valid payment claim. 2. I set out [46] of their Honours reasons, in which the competing contentions of Southern Han and Lewence are set out, and [60] and [61], where the essence of their Honours' reasoning may be found: 46. Lewence argues, consistently with the view of the Court of Appeal, that the reference is to a person who meets the description in s 8(1)(a) or s 8(1)(b): a person who has undertaken to carry out construction work or supply related goods and services under a construction contract. Southern Han argues, consistently with the view of the primary judge, that the reference is to a person who, by operation of s 8(1), is entitled to a progress payment: a person who has undertaken to carry out construction work or supply related goods and services under a construction contract in respect of which a reference date has arisen. … 60. That distinction drawn in Pt 2, between a present entitlement to a progress payment and the future ascertainment of the amount of the progress payment to which that present entitlement relates, explains the two-part description in s 13(1) of a person who is able to make a payment claim so as to trigger the procedure for recovery set out in Pt 3. The first part of the description – "[a] person referred to in section 8(1)" – refers to a person whom s 8(1)makes "entitled to a progress payment". The second part of the description – "who is or who claims to be entitled to a progress payment" – neither contradicts nor qualifies the first part of the description. The second part of the description rather recognises, consistently with s 9, that the amount of the progress payment to which that person is entitled might ultimately be ascertained, according to the procedure set out in Pt 3, to be less than the amount that the person claims to be due and might even be ascertained according to that procedure to be nothing. 61. The construction of s 13(1) consonant with the structure of the Act is accordingly that advanced by Southern Han. The description in s 13(1) of a person referred to in s 8(1) is of a person whom s 8(1) makes entitled to a progress payment. Section 8(1) makes a person who has undertaken to carry out construction work or supply related goods and services under a construction contract entitled to a progress payment only on and from each reference date under the construction contract. In that way, the existence of a reference date under a construction contract within the meaning of s 8(1) is a precondition to the making of a valid payment claim under s 13(1). 1. The court then turned to how a reference date might be determined. That of course raised s 8(2) of the Security of Payment Act. In the circumstances before the court, the contract did provide for reference dates [14] , and thus the court focused on s 8(2)(a). That meant, their Honours said [15] : A date fixed by operation of one or more express provisions of the construction contract… not … a date that is determined independently of the operation of a contract merely having regard to the contractual terms. 1. I set out [70]: 70. The reference date for which s 8(2)(a) provides is a date set by contractual force as a date for making a contractual claim to be paid the whole or part of the contracted amount. The mention in s 8(2)(a) of "a date determined by or in accordance with the terms of the contract" is of a date fixed by operation of one or more express provisions of the construction contract. The mention is not of a date that is determined independently of the operation of the contract merely having regard to the contractual terms. 1. In summary, the court decided that: 1. the existence of a reference date is a jurisdictional requirement for the making of a valid payment claim; and 2. where the contract provides for the fixing of a reference date, the reference date is that fixed by operation of the terms of the contract, not one fixed independently of those terms but by reference to the way they operate. First issue: was there a reference date in this case? The parties' submissions 1. Mr Robertson of Counsel, who appeared for Regal, submitted that the reference date fixed by the contract was, relevantly [16] , the 20th day of each month. He submitted that cl 37.1 made it clear that the 20th day of each month was the date on which progress claims should be made. Mr Robertson accepted that an early progress claim would be deemed to have been made on the 20th of the relevant month, but submitted that this could not, in effect, create a shifting or ambulatory reference date. 2. Mr Robertson submitted that difficulties would arise if the contentions for All Seasons were to be accepted. Would the time for providing a payment schedule [17] begin to run from the actual date of service, or from the date of what might be called "deemed service", of the payment claim? If the former, would it be open to the respondent to take the point that no reference date had accrued? And how would this work through the remaining procedures set out in Pt 3 of the Security of Payment Act? 3. Mr Macfarlane of Counsel, who appeared for All Seasons, submitted that the effect of the second sentence of cl 37.1 was to deem, as between the parties, that a progress claim made earlier than the 20th day of the month was deemed to have been made on that month. Thus, he submitted, the progress claim, even if (in chronological terms) made early, was (in contractual terms) made on the required date. 4. Counsel referred to numerous decided cases. Since in my view those cases do not assist in resolving the issue, I shall not take up time and paper by going into the details of those submissions. Decision 1. The starting point, in my view, is to recognise that rights and liabilities in respect of payment for construction work may exist both under the Security of Payment Act and under the terms (if any) of the construction contract (as defined in the Security of Payment Act) pursuant to which that work is performed. The Security of Payment Act does not seek to override or supplant contractual rights, unless they are inconsistent with the provisions of the Act, in which case they are void [18] . 2. Thus, there may exist, and in this case there did exist, two mechanisms for a contractor (or subcontractor) to recover payment. It may do so pursuant to the terms of the contract: by making a progress claim, having that claim certified by the Superintendent, and receiving payment of the amount (if any) certified. Or it may do so by making a payment claim under the Security of Payment Act, and relying on the procedure for recovering progress payments set out in Pt 3. It is clear that the one claim may function both as a progress claim for the purposes of the contract and as a payment claim for the purposes of the Security of Payment Act. 3. In the present case, it is common ground that the claim of 12 July was effective as a progress claim pursuant to cl 37.1 of the contract, because it was deemed to have been made on the proper date. Apart from the question of the date on which that claim was made, it was also capable of operating as a payment claim under the Security of Payment Act. What, then, in terms of the operation of the Security of Payment Act (including the requirement for a reference date if the payment claim is to be valid) is the effect of the second sentence of cl 37.1? 4. I start with the word "deemed". The ordinary and primary meaning of "deem" is "regard, consider, judge" [19] . Windeyer J referred to this primary meaning in Hunter Douglas Australia Pty Ltd v Perma Blinds [20] : After all, to deem means simply to judge or reach a conclusion about something. 1. However, the device or technique of deeming is one much beloved of the drafters of statutes and contracts. When a statute or a contract contains a "deeming provision", it may introduce what is called a "statutory fiction" [21] . Where it is intended to create a statutory (or for that matter a contractual) fiction, then, as Griffiths CJ said [22] : [I]t becomes very important to consider the purpose for which the statutory fiction is introduced. 1. However, as Windeyer J pointed out in Hunter Douglas [23] , a deeming provision does not always create a fictitious state of affairs. Where it does, it will extend the denotation of the defined term to things that it would not ordinarily denote. But it may also be used, in a non-fictional way, to define or to express a conclusion: to take an example that his Honour gave [24] , "to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant", does no more than state the actual (at the time) legal effect of attaining that age. 2. In St Aubyn v Attorney General [25] , Lord Radcliffe identified [26] at least three statutory functions that a deeming provisions may serve. First, his Lordship said, "it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail". Secondly, it may be used "to put beyond doubt a particular construction that might otherwise be uncertain". And thirdly, it may be used "to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible". 3. In Macquarie Bank Ltd v Fociri Pty Ltd [27] , Gleeson CJ (with whom Cripps JA agreed) said [28] that there were two separate questions to be asked when considering the operation of a deeming provision. The first question, his Honour said, was as to the meaning of the word "deemed". The second was "a question as to the statutory purpose for which, in a given case, that word is used". His Honour then said: [I]t commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word "deemed", as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist. 1. In my view, the word "deemed" in cl 37.1 of the contract is used to create a contractual fiction. Something that, clearly, did not happen on a particular date (because it happened earlier) is deemed, for the purposes of the contract, to have happened on the later particular date. 2. It is necessary, therefore, to consider why it was that the parties included the deeming provision in their bargain; as Griffiths CJ put it in Muller [29] , what is the purpose for which that fiction was introduced? 3. I have not set out the whole of cl 37, but it is in a form not at all unfamiliar in construction contracts. It provides for progress claims to be made, and specifies (by reference to the contract particulars) the dates on which they are to be made. It specifies what the Superintendent is to do upon receipt of that claim: namely, within a stated number of days, issue a progress certificate setting out his or her opinion of what is due from one party to the other, and in respect of retention and amounts due from (in the facts of this case) All Seasons to Regal. Thereafter, within a further stated number of days, Regal is required to pay to All Seasons any balance due upon the Superintendent's certification to All Seasons. 4. Clearly enough, the deeming provision operates to start that particular clock running on the 20th day of each month if the progress claim is served before the 20th day of the month. Where it is served early, it is deemed to have been made on the 20th, and the contractual timetable is initiated. Of course, where the progress claim is served after the 20th day of the month, it is the date of actual (rather than deemed) service that starts the clock running. 5. Clause 37 says nothing expressly, and in express terms has nothing to do, with the Security of Payment Act. Its only apparent relevance to the Security of Payment Act is to fix, for the purposes of that Act, the reference dates under the contract, "on and from" which All Seasons becomes entitled to a progress payment under the Act: that is to say, to a progress payment that may be recovered by the mechanism set out in Pt 3. 6. The reference dates are specified in Item 37 of the contract particulars, and have contractual effect by the provisions of cl 37.1. Thus, in the language of s 8(2)(a) of the Security of Payment Act, the date so fixed – the 20th day of each month – is the "date determined by or in accordance with the terms of the contract as… a date on which a claim for a progress payment may be made". 7. The deeming provision in cl 37.1 does not, in my view, convert the date so determined into some earlier date on which, as a matter of fact, All Seasons chose to serve its progress claim. On the contrary, so it seems to me, the deeming provision in cl 37.1 maintains the primacy of the contractually specified reference date by insisting that a progress claim served earlier is "deemed" – that is to say, taken or considered – to have been served on the contractually specified reference date. 8. In the present case, the contractual purpose of the deeming provision in cl 37.1 is reasonably clear. By setting out a timetable for the making of progress claims, their assessment, and the payment of any amount owing, it enables the parties to plan their work and to manage their cashflow. Those matters are important; and many cases (I do not propose to give citations), have recognised that the maintenance of cashflow is the fundamental object that the Security of Payment Act seeks to achieve. 9. Nonetheless, the question remains, should a contractual provision clearly intended to facilitate the administration of the contract have any relevant effect on the operation of the Security of Payment Act? 10. The important point, and in my view the one that disposes of the first issue, is that the entitlement to a progress payment given by s 8 arises not only because the claimant has undertaken to carry out construction work but, also, because a reference date has arisen. That is the point of the decision in Southern Han. If no reference date has arisen, there is no statutory entitlement to a progress payment. And it is the existence of that statutory entitlement that is the precondition of the operation of s 13, as again the decision in Southern Han makes clear. 11. It is one thing to say, for the purposes of the contract, that a progress claim served ahead of time is deemed to have been served on the contractually required date. That does not alter the date. The required date remains (in this case) the 20th day of the month. It is not some floating or ambulatory date fixed by whim, or by the accident of service. 12. It is quite another thing to say that a progress claim served ahead of time is, nonetheless, served "on and from" the contractually required date, which of course is also the reference date for the purposes of the Security of Payment Act. That proposition, for which Mr Macfarlane contended in his submissions, effectively treats the reference date under the contract as being the 20th each of month or such earlier date as All Seasons might choose to make a progress claim. That does not seem to me to be permissible. 13. I referred earlier [30] to the effect of the existence of concurrent contractual and statutory rights. In the present case, there is a contractual right to a progress payment, and the process of assessing and (if appropriate) paying the progress payment is initiated by the service of a progress claim. The contract accepts that an early-served progress claim will be effective, for the purpose of the contract. It does not necessarily follow that it will be effective also for the purposes of the Security of Payment Act. 14. The fictitious state of affairs created by operation of the deeming provision in a particular case (including the present) is no doubt convenient for the purposes of the contract. But there is nothing in the contract to make the stipulated date – the 20th day of each month – a condition of entitlement. The primary right of All Seasons, in undertaking and executing the contract works, is to be paid the contract price. Clause 37 provides for the payment of that price progressively, as work is done. What follows (including the specification of the date for making progress claims) is of a machinery nature. In those circumstances, the effect of the deeming provision, whilst fictitious, is not to give an entitlement that does otherwise exist. 15. However, and in marked contrast, the opening words of s 8(1) of the Security of Payment Act – "on and from each reference date under a construction contract" – are, the High Court has held, effective to fix a condition of entitlement. Where the reference date has not arrived in fact, the payment claim will be ineffective. To put it another way, where the reference date has not arrived in fact, the claimant cannot be described as (in the introductory words of s 13(1)) "a person referred to in s 8(1)" who is… entitled to a progress payment". 16. In my view, the contractual purpose of the deeming provision is that which I have identified above. There is no reason for extending that contractual purpose to the requirements of the Security of Payment Act; as I have said, cl 37 is simply not concerned with that Act. There is thus nothing in cl 37 which entitles or requires the parties to ignore the actual state of affairs, and to take account only of the fictional state of affairs created, in any particular case, by the operation of the deeming provision. 17. I referred earlier [31] to Mr Robertson's submissions as to the difficulties that, he said, would follow if All Seasons' contentions were to be accepted. Since I have come to the conclusion that the first issue can be resolved by considering ss 8 and 13 of the Security of Payment Act as they have been explained in Southern Han, it is not necessary to express a concluded view on those submissions. It is sufficient to say that any approach to the construction and operation of the Security of Payment Act that has the potential to introduce uncertainty is to be avoided if at all possible. 18. I add that no different conclusion would follow if the operation of the contractual deeming provision were factitious rather than fictitious [32] . The result would be the same: the factitious result would be one that existed for the purposes of the contract, but not otherwise. 19. I conclude that there was no available reference date to support the progress claim that All Seasons served on Regal on 12 July 2016. It must follow that the adjudicator lacked jurisdiction to hear and determine the adjudication application based on that progress claim in its purported character as a payment claim under s 13(1) of the Security of Payment Act. It could not have been such a payment claim, because, for the reasons I have sought to explain, All Seasons was not, when it was served, "a person referred to in s 8(1) who is… entitlement to a progress payment". Second issue: is leave required? 1. The adjudicator's determination was dated 30 August 2016, and made available to the parties shortly thereafter. Regal's summons was filed on 1 February 2017. The relief claimed included: 1. a declaration that the determination was void; and 2. "further or in the alternative, an order in the nature of certiorari quashing" that determination. 1. UCPR r 59.1 provides as follows: 59.1 Application (1) This Part applies to the following proceedings for judicial review: (a) proceedings under section 65 and 69 of the Supreme Court Act 1970and other proceedings in the supervisory jurisdiction of the Supreme Court, and (b) proceedings for or in the nature of judicial review in the Class 4 or Class 8 jurisdiction of the Land and Environment Court. (2) This Part does not apply to proceedings commenced before the commencement of this Part. 1. Rule 59.10 provides as follows: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required. The parties' submissions 1. Mr Robertson did not accept that the proceedings were "for judicial review", simply because of the further or alternative prayer for relief in the nature of certiorari. He submitted that proceedings seeking declaratory relief, even in respect of an adjudicator's determination, and consequential relief (in relation to the enforcement of any determination or, as here, of a judgment obtained pursuant to it) were not proceedings for judicial review of a kind to which, by operation of r 59.1, Pt 59 of the UCPR applied. 2. In any event, Mr Robertson submitted, his client did not press for relief in the nature of certiorari, and such relief was not, in any relevant sense of the word, "required". It follows, he submitted, that even if the proceedings were for judicial review, r 59.10 did not apply. 3. Mr Macfarlane submitted, based on the decision in Chase Oyster Bar, that the proceedings were for judicial review. His submissions did not really address r 59.10(5). He accepted, very properly, that All Seasons had not suffered any actual prejudice by reason of the suggested delay in commencement of proceedings. However, he pointed to the strong public interest underlying and informing the objects of the Security of Payment Act, referring both to Southern Han [33] and to Fitz Jersey [34] . Decision 1. In my view, r 59.10 does not apply. That is because "the setting aside of [the determination] is not required". The word "required" may mean at least two things in this context. First, it may mean "sought by the party claiming judicial review". Alternatively, it may mean "necessary to give proper effect to the court's conclusion" that, for example, the decision under challenge was made without jurisdiction. There may be other available meanings. 2. In this case, Regal does not press for relief in the nature of certiorari. Nor is relief of that nature necessary to give effect to the conclusion I have expressed. The declaration that is sought will, when made, do that, because it will bind the relevant parties: Regal, All Seasons and the adjudicator. There is no need to go further, and quash the adjudicator's determination. 3. I conclude that Regal was not required to commence these proceedings within three months of 31 August 2016, and thus that no question of leave arises. Issue 3: should leave be granted? 1. This issue does not arise. Accordingly, I will do no more than say that, taking into account the total absence of any satisfactory explanation for the delay and the small amount involved, I would have been disinclined to grant leave were it necessary to do so. I see no affront to justice in holding a party to the consequences of its conduct. Conclusion and orders 1. Regal has made good its claims for the relief sought by prayers 1, 3 (which sets out a mechanism for setting aside the judgment recovered in the Local Court) and 4 (seeking payment to it of any monies paid into court) of the summons. At present, I incline to the view that it should have its costs. Ordinarily, they should follow the event (UCPR r 42.1). 2. I make the following orders: 1. direct parties to bring in short minutes of order to give effect to these reasons: 2. List matter for directions at 9:30am on 1 June 2017 before me for the making of orders; 3. Give leave to approach in chambers if the parties are agreed before then on the form of orders to be made; 4. Direct that the exhibit on the hearing be handed out. ********** Endnotes 1. By cl 37.1 of the general conditions, read in conjunction with item 37 of the contract particulars. 2. Regal relied on s 13(5) of the Security of Payment Act. 3. See s 24 of the Security of Payment Act. 4. See s 25 of the Security of Payment Act. 5. [2016] HCA 52; (2016) 91 ALJR 233; 340 ALR 193. 6. Southern Han was argued in the High Court on 12 October 2016 and judgment was given on 21 December 2016. 7. See Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd [2017] NSWCA 53 8. See Southern Han at [26], [27]. 9. See Southern Han at [2]. 10. Kiefel, Bell, Gageler, Keane and Gordon JJ in joint reasons. 11. For convenience, I leave aside "related goods and services". 12. At [61]. 13. At [61]. 14. At [21]. 15. At [70]. 16. That is, leaving out of consideration the time for making a final payment claim, which is the subject of cl 37.4. 17. Ten business days from service of the payment claim, unless the contract provides otherwise: see s 14(4)(b) of the Security of Payment Act. 18. See s 34. 19. Shorter Oxford English Dictionary. See also Johnson's Dictionary of the English Language (1755 edition): "To judge; to conclude upon consideration; to think; to determine". 20. (1970) 122 CLR 49, 65. 21. See Griffiths CJ in Muller v Dalgety & Co Ltd (1909) 9 CLR 693 at 696, and the cases cited by his Honour. 22. Ibid. 23. At 65-66. 24. At 65. 25. [1952] AC 15. 26. At 53. 27. (1992) 27 NSWLR 203. 28. At 207. 29. At 696. 30. At [26]. 31. At [24] 32. To adopt the distinction proposed by Windeyer J in Hunter Douglas at 66. 33. At [4]. 34. AT [10] –[11]. Amendments 02 June 2017 - Para 6: All Seasons to Regal. Para 64: All Seasons to Regal. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2017