Brodyn Pty Ltd v Davenport

[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…