Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685

Supreme Court New South Wales

Medium Neutral Citation: Lendlease Engineering Pty Ltd v Timecon Pty Ltd [2019] NSWSC 685 Hearing dates: 22 to 24 May 2019 Decision date: 12 June 2019 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Declare that the determination of the second defendant dated 2 January 2019 (the Determination) is void.

(2) Order that the first defendant be restrained by itself and its servants and agents from doing either or both of the following in connection with the Determination:

(a) Requesting the provision of an adjudication certificate pursuant to s 24(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act);

(b) Filing an adjudication certificate as a judgment for a debt in any court pursuant to s 25 of the Act.

(3) Order that the sum of $887,532.80 paid into court on 5 April 2019 and any interest thereon be paid to the plaintiffs.

(4) Order that the first defendant pay the plaintiffs' costs of the proceedings. Catchwords: BUILDING AND CONSTRUCTION – adjudication – whether determination of adjudicator void – jurisdiction of adjudicator – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether there was a construction contract – whether there was a construction contract under which there was an undertaking to carry out construction work or to supply related goods and services Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Income Tax and Social Services Contribution Assessment Act 1936-1950 (Cth) Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Australian Competition and Consumer Commission v CC (New South Wales) Pty Ltd (No 8) (1999) 165 ALR 468 Class Electrical Services Pty Ltd v Go Electrical Pty Ltd [2013] NSWSC 363 IWD No 2 Pty Ltd v Level Orange Pty Ltd [2012] NSWSC 1439 Machkevitch v Andrew Building Constructions [2012] NSWSC 546 Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 Okaroo Pty Ltd v Vos Construction and Joinery Pty Ltd [2005] NSWSC 45 Category: Principal judgment Parties: Lendlease Engineering Pty Ltd (First Plaintiff) Bouygues Construction Australia Pty Ltd (Second Plaintiff) Timecon Pty Ltd (First Defendant) Helen Durham (Second Defendant) (Submitting Appearance) AAE Nominations Pty Ltd t/as Expert Adjudication (Third Defendant) (Submitting Appearance) Representation: Counsel: S Robertson with F Ashworth (Plaintiffs) FC Corsaro SC with D Byrne (First Defendant)