Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208

Supreme Court New South Wales

Medium Neutral Citation: Parrwood Pty Ltd v Trinity Constructions (Aust) Pty Ltd [2020] NSWSC 208 Hearing dates: 5 March 2020 Decision date: 11 March 2020 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Give leave to the first defendant to file the Cross Summons filed on 2 March 2020.

(2) The Summons is dismissed.

(3) Declare that the adjudication determination of John O'Brien dated 15 November 2019 purportedly made under the Building and Construction Industry Security of Payment Act 1999 (NSW) in respect of Adjudication Application 2019ADJT523 lodged with Adjudicate Today is null and void.

(4) The sum of $401,109.73 paid into Court on 31 January 2020 and any interest thereon be paid to the first defendant.

(5) The plaintiff pay the first defendant's costs of the proceedings (including the cross-claim). Catchwords: BUILDING AND CONSTRUCTION — Progress payments — Where right to a progress payment arose before suspension — Whether adjudication determined amount of progress payment — Whether adjudicator committed jurisdictional error — Whether party entitled to withdraw adjudication application under s 26 and file new adjudication application — Where supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s 13(8) allegedly false or misleading — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 13, 22, 26 and 34. EVIDENCE — Application of the principle in Briginshaw v Briginshaw. PRACTICE AND PROCEDURE — Where cross summons filed late — Whether decision not to challenge the first adjudicator determination amounts to election. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Cases Cited: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Briginshaw v Briginshaw (1938) 60 CLR 336 Cardinal Project Services Pty Ltd v Hanave Pty Ltd (2011) 81 NSWLR 716; [2011] NSWCA 399 Central Projects Pty Ltd v Davidson [2018] NSWSC 523 Greenwood Futures Pty Ltd v DSD Builders Pty Ltd [2018] NSWSC 1407 Sought After Investments Pty Ltd v Unicus Homes Pty Ltd [2019] NSWSC 600 Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Category: Principal judgment Parties: Parrwood Pty Ltd (Plaintiff | First Cross Defendant) Trinity Constructions (Aust) Pty Ltd (First Defendant | Cross Claimant) Helen Durham (Second Defendant) AAE Nominations Pty Ltd (Third Defendant) John O'Brien (Second Cross Defendant) Adjudicate Today (Third Cross Defendant) Representation: Counsel: IG Roberts SC with D Byrne (Plaintiff | First Cross Defendant) M Pesman SC (First Defendant | Cross Claimant) Submitting Appearance (Second Defendant) Submitting Appearance (Third Defendant) Submitting Appearance (Second Cross Defendant) Submitting Appearance (Third Cross Defendant)