Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121

Supreme Court New South Wales

Medium Neutral Citation: Mt Lewis Estate Pty Ltd v Metricon Homes Pty Ltd [2017] NSWSC 1121 Hearing dates: 17 August 2017 Decision date: 24 August 2017 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: The adjudication determination of the second defendant dated 2 March 2017 is void. The adjudicator is not entitled to be paid any fees or expenses in connection with the determination. The second defendant's determination that the plaintiff is to pay his costs and expenses is quashed. Catchwords: BUILDING AND CONSTRUCTION - Building and Construction Industry (Security of Payment) Act 1999 (NSW) (the Act) – ss 13, 21(3), 29, 31 – Building and Construction Industry (Security of Payment) Regulation 2008 (NSW) (the Regulation) – whether the defendant's payment claim dated 16 December 2016 complied with the requirements of ss 13(7) and (9) as being accompanied by a compliant supporting statement – whether the supporting statement which accompanied the claim complied with the requirements of ss13(7) and (9) and the Regulation – HELD: supporting statement did not comply because the declaration contained in it was made on a date earlier than the payment claim identified as the one it purported to support – HELD: the purported payment claim did not effectively invoke the procedures under the Act – HELD: the adjudication determination of the second defendant void – where notice of acceptance of appointment under s 21(3) was actually received by the plaintiff but in a manner not expressly provided for by s 31 – HELD: actual receipt was effective notification under s 21(3)(a) – HELD: adjudication determination out of time under s 21(3)(a) but not void – under s 29(4) adjudicator not entitled to be paid any fees and expenses. Legislation Cited: Building and Construction Industry (Security of Payment) Act 1999 (NSW) Building and Construction Industry (Security of Payment) Regulation 2008 (NSW) Cases Cited: Capper v Thorpe (1998) 194 CLR 342 Cardinal Project Services v Hanave Pty Ltd (2011) 81 NSWLR 716 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 Cranbrook School v JA Bradshaw Civil Contracting [2013] NSWSC 430 Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 MPM Constructions v Trepcha Constructions [2004] NSWSC 103 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Texts Cited: Mr Bruce Collins QC, 'Independent Inquiry into Construction Industry Insolvency in NSW: Final Report', November 2012 New South Wales, Parliamentary Debates, Legislative Assembly, 24 October 2013 (Mr Andrew Constance) Category: Principal judgment Parties: Mt Lewis Estate Pty Ltd - Plaintiff Metricon Homes Pty Ltd - Defendant Representation: Counsel: Mr S. Robertson with Mr M. Forgacs - Plaintiff Mr F. P. Hicks with Ms A. J. Carr - Defendant