Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339 Hearing dates: 7 December 2018 Decision date: 21 December 2018 Before: Basten JA at [1]; Meagher JA at [35]; Leeming JA at [36] Decision: (1) Allow the appeal and set aside order (1) made on 19 October 2018 (quashing the determination of the adjudicator) and order (1) made on 24 October 2018 (as to costs).

(2) In place of those orders, order that:

(a) the proceedings brought in the Equity Division by Australia Avenue Developments Pty Ltd be dismissed; (b) Australia Avenue Developments Pty Ltd pay the costs of Icon Co (NSW) Pty Ltd in the Division.

(3) Set aside order (2) made on 24 October 2018 and the subject of a stay (ordering that the moneys in court be paid out to Australia Avenue).

(4) Order that the moneys held in court be paid out to the appellant.

(5) Order that the first respondent (Australia Avenue Developments Pty Ltd) pay the appellant's costs of the appeal. Catchwords: ADMINISTRATIVE LAW – judicial review – adjudicator's determination – jurisdictional error – scope of payment claim – duty to consider payment claim – scope of claim to be determined by adjudicator

BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator's determination – whether error in construction of payment claim – respondent alleged adjudicator made allowances in award for amounts not contained in payment claim – whether adjudicator exceeded jurisdiction by determining claim other than that made by claimant – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 20, 22(2) Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 20, 21, 22, Pt 3 Cases Cited: Brodyn Pty Ltd t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229; 21 BCL 364 Downer Construction (Australia) Pty Ltd v Energy Australia (2007) 69 NSWLR 72; [2007] NSWCA 49 Gedeon v Commissioner, NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; [2018] HCA 4. Category: Principal judgment Parties: Icon Co (NSW) Pty Ltd (Appellant) Australia Avenue Developments Pty Ltd (First Respondent) Rosemarie Risgalla (Second Respondent) Representation: Counsel: Mr M Christie SC / Mr D Hume (Appellant) Mr I Roberts SC / Mr D Byrne (First Respondent)