Hanson Construction Materials Pty Ltd v Brolton Group Pty Limited [2019] NSWSC 1641

Supreme Court New South Wales

Medium Neutral Citation: Hanson Construction Materials Pty Ltd v Brolton Group Pty Limited [2019] NSWSC 1641 Hearing dates: 19 November 2019 Decision date: 26 November 2019 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Declare that the determination of the second defendant dated 31 October 2019 in respect of adjudication application no 2019-TASC-109 (the Determination) is void;

(2) Order that the first defendant be permanently restrained from requesting the provision of an adjudication certificate in relation to the Determination or filing an adjudication certificate in relation to the Determination as a judgment for a debt in any court;

(3) Order that the sum of $2,904,706.75 paid into court on 13 November 2019, and any interest thereon, be paid to the plaintiff;

(4) Order that the first defendant pay the plaintiff's costs;

(5) Give leave to the parties to make an application to vary order (4) within 14 days' of today's date. Catchwords: BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether denial of natural justice – whether failure by adjudicator to provide parties with opportunity to make submissions with respect to choice of reference date relevant to payment claim – whether open to claimant to support determination with reference to different reference date than that relied on by adjudicator – whether open to adjudicator to justify determination on basis that it was a determination of a payment claim by reference to other reference date BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) –whether determination void – whether payment claim referrable to work completed after relevant reference date – construction of sections 8 and 13 of the legislation – Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd and other authorities considered – whether payment claim may only relate to work done before reference date in respect of payment claim was served BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether to grant conditional relief – power of court to sever part of determination which is within jurisdiction from that part which is not – recent authority Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421 CC Builders (Aust) Pty Ltd v Milestone Civil Pty Ltd [2019] NSWSC 1251 Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 97 NSWLR 773; [2018] NSWCA 107 Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd [2019] NSWSC 286 Musico v Davenport [2003] NSWSC 977 Patrick Stevedores Operations No 2 Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2014] NSWSC 1413 Rhomberg Rail Australia Pty Ltd v Concrete Evidence Pty Ltd [2019] NSWSC 755 Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 The Trustee for Allway Unit Trust trading as Westside Mechanical Contracting Pty Ltd v R&D Airconditioning Pty Ltd [2018] SASC 46 Watpac Constructions v Austin Corp [2010] NSWSC 168 YTO Construction Pty Ltd v Innovative Civil Pty Ltd [2019] NSWCA 110 Category: Principal judgment Parties: Hanson Construction Materials Pty Ltd ACN 009 679 734 (Plaintiff) Brolton Group Pty Limited ACN 112 761 010 (First Defendant) Edward Smithies (Second Defendant) Representation: Counsel: NJ Kidd SC with B Le Plastrier (Plaintiff) G Sirtes SC with D Byrne (First Defendant) Submitting Appearance (Second Defendant)