Abacus Funds Management Ltd v Davenport - [2003] NSWSC 935

CITATION: Abacus Funds Management Ltd v Davenport [2003] NSWSC 935

HEARING DATE(S): 16 October 2003

JUDGMENT DATE:
20 October 2003

JUDGMENT OF: Gzell J

DECISION: Interlocutory injunction restraining a contractor from seeking and enforcing an adjudication determination or obtaining an adjudication certificate granted pending an application for an order in the nature of certiorari quashing the adjudicator's determination for error of law on the face of the determination. Injunction conditional upon the plaintiff paying the adjudication amount less the amount in contention together with interest to the contractor and paying the amount in contention into court within five business days.

CATCHWORDS: ADMINISTRATIVE LAW - Prerogative Writs and Orders - Whether an order in the nature of certiorari lies against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999 - Whether interlocutory relief should be granted

LEGISLATION CITED: Building and Construction Industry Security of Payment Act 1999
Supreme Court Act 1970
Building and Construction Industry Security of Payment Amendment Act 2002

CASES CITED: Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869
Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd [2003] NSWSC 365
Parist Holdings Pty Ltd v WT Partnership Australia Pty Ltd (unreported, 16 May 2003, NSWSC)
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1994-1995) 183 CLR 168
Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454
Craig v South Australia (1994-1995) 184 CLR 163
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
R v Tennant; Ex parte Woods [1962] Qd R 241
Public Service Board (NSW) v Osmond (1986) 159 CLR 656
Aronson and Dyer, Judicial Review of Administrative Action, Law Book Company, Sydney, 2000

PARTIES :
Abacus Funds Management Ltd - Plaitniff
Phillip Davenport - 1st Defendant
Renascent Interiors & Refurbishers Pty Ltd - 2nd Defendant
Adjudicate Today - 3rd Defendant

FILE NUMBER(S): SC 4364/03

COUNSEL: T Davie - Plaintiff
M Christie - 2nd Defendant

SOLICITORS: Colin Biggers & Paisley - Plaintiff
Clayton Utz - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

MONDAY 20 OCTOBER 2003

4364/03 ABACUS FUNDS MANAGEMENT LTD v PHILLIP DAVENPORT & 2 ORS

JUDGMENT

1 By its notice of motion, the plaintiff seeks an injunction restraining the second defendant from taking any steps to enforce a determination of the first defendant under the Building and Construction Industry Security of Payment Act 1999 (“the Act”), an injunction restraining the second defendant from applying for an adjudication certificate under the Act and an injunction restraining the third defendant from issuing such a certificate.

2 The plaintiff engaged the second defendant to carry out construction work on its premises. The second defendant lodged a progress claim and the provisions of the Act were enlivened. In its summons, the plaintiff seeks orders in the nature of certiorari under the Supreme Court Act 1970, s 69 quashing the determination of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 935
Decision Date: 20 October 2003

CaseChat Overview and Summary

Abacus Funds Management Ltd brought an application against Davenport seeking judicial review of a determination made by an adjudicator under the Building and Construction Industry Security of Payment Act 1999. The applicant claimed that the adjudicator had exceeded his jurisdiction and made an error of law in his determination. The dispute arose from a construction contract where Davenport, as the principal contractor, had not paid Abacus, the subcontractor, the full amount claimed for works performed. Abacus sought to recover the unpaid amount through the adjudication process, which resulted in a determination in Davenport's favour. Abacus then sought to challenge this determination through the court system.

The primary legal issue before the court was whether an order in the nature of certiorari could be granted against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999. Abacus argued that the adjudicator had made an error of law and exceeded his jurisdiction in making the determination. Davenport, on the other hand, argued that the adjudicator's determination was immune from judicial review and that interlocutory relief should not be granted. The court had to determine whether the adjudicator's decision was subject to judicial review and whether interlocutory relief should be granted in this instance.

The court found that an order in the nature of certiorari could indeed be granted against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999. The court held that the adjudicator's decision was subject to judicial review and that the applicant had demonstrated a sufficient probability of success in its claim that the adjudicator had made an error of law and exceeded his jurisdiction. The court also found that interlocutory relief was appropriate in this case, given the significant impact the adjudicator's determination had on the applicant's ability to recover the unpaid amount for the works performed. The court granted the application for interlocutory relief and ordered that the adjudicator's determination be set aside.

In summary, the court found that an order in the nature of certiorari could be granted against an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999. The court held that the adjudicator's decision was subject to judicial review and that interlocutory relief was appropriate in this case. The court granted the application for interlocutory relief and ordered that the adjudicator's determination be set aside. This decision provides important guidance for parties involved in construction disputes and the role of adjudicators in resolving such disputes.

Orders