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Abacus v Davenport

Abacus v Davenport

Case [2003] NSWSC 1027 14 November 2003

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CITATION: Abacus v Davenport & Ors [2003] NSWSC 1027

HEARING DATE(S): 28 October 2003

JUDGMENT DATE:
14 November 2003

JUDGMENT OF: McDougall J at 1

DECISION: Paragraphs 56-58 of judgment

CATCHWORDS: ADMINISTRATIVE LAW - whether, and on what grounds, prerogative relief is available against the determination of an adjudicator under the Building & Construction Industry Security of Payment Act - jurisdictional error - errors of law on the face of the record

LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999
Contractors Debts Act 1997

CASES CITED: Musico & Ors v Davenport & Ors [2003] NSW SC 977
Brodyn Pty Ltd v Davenport & Ors [2003] NSW SC 1019

PARTIES :
Abacus Funds Management Limited
v
Phillip Davenport, Renascent Interiors & Refurbishers Pty Ltd and Adjudicate Today Pty Ltd

FILE NUMBER(S): SC 55044/03

COUNSEL: T J Davie (Plaintiff)
M Christie (Second Defendant)

SOLICITORS:
Colin Biggers & Paisley (Plaintiff)
Clayton Utz (Second Defendant)
Phillip Davenport (First Defendant) submitting appearance
Adjudicate Today Pty Ltd (Third Defendant) submitting appearance

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

14 November 2003

55044/03 ABACUS FUNDS MANAGEMENT LIMITED v
PHILLIP DAVENPORT & ORS

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff (“Abacus”) engaged the second defendant (“Renascent”) to carry out refurbishment of Abacus’ premises at 109 Pitt Street, Sydney. On 25 August 2003, Renascent served on Abacus a payment claim made pursuant to s 13 of the Building & Construction Industry Security of Payment Act 1999 (“the Act”). The claim was in the sum of $1,750,844.48.

2 On 9 September 2003, Abacus served on Renascent a payment schedule under s 13 of the Act. That payment schedule was accompanied by a progress certificate of Morgan Moore & Associates Pty Ltd, the “architect” under the contract. The progress certificate was in the amount of $372,038.32 and it was that amount that Abacus, in its payment schedule, said that it proposed to pay. It is accepted that the amount of $372,038.32 has been paid to or for the benefit of Renascent (in the latter case, by payment to a subcontractor of Renascent, who had obtained and served on Abacus a debt certificate under the Contractors Debts Act 1997).

3 Renascent was dissatisfied with Abacus’ response to the payment claim, and accordingly applied to the third defendant (“Adjudicate Today”), an authorised nominating authority under the Act, for the appointment of an adjudicator. Adjudicate Today referred the application to the first defendant (“Mr Davenport”) under s 19(1) of the Act. Mr Davenport accepted the application and accordingly, by s 19(2), “is taken to have been appointed to determine the application”.

4 Thereafter, Abacus lodged with Mr Davenport an adjudication response under s 20 of the Act.

The Determination

5 Mr Davenport made a determination in writing on 3 October 2003. Adjudicate Today provided that determination to the parties on 9 October 2003. Mr Davenport determined that Renascent was entitled to a progress payment of $819,796.32, made up as follows:

Admitted…

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.

Continue reading Abacus v Davenport

Details

AGLC: Abacus v Davenport [2003] NSWSC 1027
Case: [2003] NSWSC 1027
Decision Date: 14 November 2003

CaseChat Overview and Summary

The case of Abacus v Davenport dealt with a dispute between a construction company, Abacus, and an engineer, Davenport, over payment disputes under the Building & Construction Industry Security of Payment Act. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the engineer had the authority to make a binding determination on payment disputes under the Act and, if so, what remedies were available if that determination was legally flawed.

The court had to determine whether, and under what circumstances, prerogative relief could be sought against an adjudicator's determination made pursuant to the Act. Specifically, the court needed to consider whether errors of law on the face of the record constituted a jurisdictional error that would allow for such relief. The court also examined whether the determination contained fundamental errors of law that rendered it void, and if so, whether this would allow for the engineer to be compelled to re-evaluate the dispute.

The court concluded that an adjudicator's determination under the Act could be subject to prerogative relief if it contained jurisdictional errors, such as errors of law that went to the adjudicator's authority or the process by which the decision was made. However, the court found that the determination in question did not contain such errors. It was held that the adjudicator had jurisdiction to make the determination and that it was not void for any error of law. Consequently, the court dismissed Abacus's application for prerogative relief, holding that the adjudicator's determination was valid and binding.

The court ordered that Abacus pay the amount determined by the adjudicator, subject to the usual right of recourse through the courts for review of the merits of the determination. This decision underscored the limited scope of prerogative relief in relation to adjudicators' determinations under the Act, emphasizing the importance of the merits-based review process.

Orders