Brodyn Pty Ltd v Davenport

Case [2004] NSWCA 394


Reported Decision:

61 NSWLR 421

Court of Appeal


CITATION: Brodyn Pty. Ltd. t/as Time Cost and Quality v. Davenport & Anor. [2004] NSWCA 394
HEARING DATE(S): 1, 13 and 14 October 2004
JUDGMENT DATE:
3 November 2004
JUDGMENT OF: Mason P at 1; Giles JA at 2; Hodgson JA at 3
DECISION: Appeal dismissed with costs.
CATCHWORDS: BUILDING AND CONSTRUCTION - Progress payments - Building & Construction Industry Security of Payment Act - Adjudicator's determination - Adjudication certificate - Consequent judgment - Grounds for judicial intervention - Whether certiorari available - Grounds on which purported determination void - Natural justice - Error of law - Reference dates - Effect of termination of contract or cessation of work - Home Building Act - Effect of absence of licence - Exercise of discretion - Whether other relief available in respect of judgment, including stay of execution.
LEGISLATION CITED: Building & Construction Industry Security of Payment Act 1999
Home Building Act 1989 ss.3, 4, 10, 11, 94.
Supreme Court Act 1970 s.69
CASES CITED: Abacus Funds Management v. Davenport [2003] NSWSC 1027
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147
Banks v. Transport Regulation Board (Vic) (1968) 119 CLR 222
Brodyn Pty. Limited v. Davenport [2003] NSWSC 1019
Calvin v. Carr [1080] AC 574
Craig v. South Australia (1995) 184 CLR 163
Durayappah v. Fernando [1967] 2 AC 337
Emag Constructions Pty. Limited v. Highrise Concrete Contractors (Aust) Pty. Limited [2003] NSWSC 903
Holdmark Developers Pty. Limited v. G.J. Formwork Pty. Limited [2004] NSWSC 905
Minister for Immigration v. Bhardwaj (2002) 209 CLR 597
Multiplex Constructions Pty. Limited v. Luikens [2003] NSWSC 1140
Musico v. Davenport [2003] NSWSC 977
Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355
R v. Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598
Ridge v. Baldwin [1964] AC 40
Transgrid v. Walter Construction Group [2004] NSWSC 21

PARTIES :

Brodyn Pty. Limited t/as Time Cost and Quality - appellant
Philip Davenport - 1st respondent
Dasein Constructions Pty. Limited - 2nd respondent
FILE NUMBER(S): CA 40296/04
COUNSEL: Mr. P. Callaghan SC with Ms. R. Rana for appellant
Mr. P.G. Fisher for respondents
SOLICITORS: Schrader & Associates, Parramatta for appellant
Turnbull Bowles, Sydney for respondents
LOWER COURTJURISDICTION: Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S): SC 5412/03
LOWER COURT
JUDICIAL OFFICER :
Gzell J



                          CA 40296/04
                          SC 5412/03

                          MASON P
                          GILES JA
                          HODGSON JA

                          Wednesday 3 November 2004
BRODYN. LTD. T/a TIME COST AND QUALITY V. DAVENPORT & ANOR.

HEADNOTE



      FACTS
      Brodyn entered into a construction contract with Dasein to which the Building & Construction Industry Security of Payment Act 1999 (the Act) applied. On 13 June, Brodyn gave notice to Dasein alleging repudiation of the contract by Dasein, and purporting to accept that repudiation.

      On 27 June 2003, Dasein served Broydn with a document stated to be a payment claim under the Act. Brodyn responded by serving a payment schedule in accordance with s.14 of the Act.

      On 28 August…

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AGLC
Brodyn Pty Ltd v Davenport [2004] NSWCA 394
Case
[2004] NSWCA 394
Decision Date

CaseChat Overview and Summary

Brodyn Pty Ltd (the respondent) sought to enforce an adjudication certificate issued under the *Building and Construction Industry Security of Payment Act 1999* (NSW) against Davenport (the appellant). The dispute concerned progress payments under a building contract. The adjudication certificate had been registered as a judgment in the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the adjudicator's determination was void for jurisdictional error or a breach of natural justice, and whether the Supreme Court had erred in entering judgment on the adjudication certificate. The court also considered whether certiorari was available to quash the determination and whether other relief, such as a stay of execution, should have been granted.

The Court of Appeal held that the adjudicator's determination was not void. It found that the adjudicator had not committed a jurisdictional error by failing to consider the effect of the termination of the contract or the cessation of work, nor had there been a breach of natural justice. The court reasoned that the adjudicator had acted within their statutory powers and that any alleged errors of law did not vitiate the determination to the extent of rendering it void. The court also determined that the *Home Building Act 1989* (NSW) did not render the adjudication certificate void due to the absence of a licence, and that the Supreme Court had correctly entered judgment.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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