Brodyn Pty Ltd v Davenport - [2004] NSWSC 254

CITATION: Brodyn Pty Ltd v Davenport & Anor [2004] NSWSC 254 revised - 02/04/2004

HEARING DATE(S): 25/03/04

JUDGMENT DATE:
2 April 2004

JUDGMENT OF: Gzell J

DECISION: Summons dismissed with costs.

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 certiorari should be granted when judgment had been entered for the adjudicated amount - Whether s 25 of the Act rendered an order in the nature of certiorari futile

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

CASES CITED: Abacus Funds Management Ltd v Davenport [2003] NSWSC 935
Musico v Davenport [2003] NSWSC 977
Brodyn Pty Ltd v Davenport [2003] NSWSC 1019 Abacus v Davenport [2003] NSWSC 1027
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140
Transgrid v Walter Construction Group Ltd [2004] NSWSC 21
Craig v The State of South Australia (1994-1995) 184 CLR 163
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Ex parte Malouf; Re Gee (1943) 43 SR (NSW) 195

PARTIES :
Broydn Pty Ltd t/as Time Cost and Quality- Plaintiff
Philip Davenport- First Defendant
Dasein Constructions Pty Ltd- Second Defendant

FILE NUMBER(S): SC 5412/03

COUNSEL: Ms Rashda Rana- Plaintiff
Mr Patrick Fisher- 2nd Defendant

SOLICITORS: Schrader & Associates- Plaintiff
Turnbull Bowles Lawyers Pty Ltd- 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 2 APRIL 2004

5412/03 BRODYN PTY LTD V PHILIP DAVENPORT & ANOR

JUDGMENT

1 The plaintiff sought an order in the nature of a writ of certiorari under the Supreme Court Act 1970, s 69 quashing a determination of the first defendant as an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (“Act”).

2 The structure of the Act is set out in Abacus Funds Management Ltd v Davenport [2003] NSWSC 935. It was there decided that certiorari lies to quash a determination of an adjudicator in appropriate circumstances. Those circumstances were further analysed in Musico v Davenport [2003] NSWSC 977, a decision that has been followed, in this regard, on a number of occasions (Brodyn Pty Ltd v Davenport [2003] NSWSC 1019, Abacus v Davenport [2003] NSWSC 1027, Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140, Transgrid v Walter Construction Group Ltd [2004] NSWSC 21).

3 On 28 September 2003, the second defendant served a payment claim on the plaintiff for $195,222.64 exclusive of GST. On 29 September 2003 the plaintiff responded that the second defendant’s wrongful repudiation of the contract had been accepted by the plaintiff and the contract was no longer in force, that it had submitted a detailed payment schedule in response to an earlier claim and relied upon that information and that the claim was beyond jurisdiction because a final claim had been submitted…

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: [2004] NSWSC 254
Decision Date: 2 April 2004

CaseChat Overview and Summary

Brodyn Pty Ltd sought judicial review of an adjudicator's determination under the Building and Construction Industry Security of Payment Act 1999, arguing the adjudicator had no jurisdiction. The case was heard in the Supreme Court of New South Wales. The principal issue before the court was whether an order in the nature of certiorari could lie against an adjudicator's determination and, if so, whether such an order should be granted even though judgment had already been entered for the adjudicated amount. A secondary issue was whether section 25 of the Act rendered an order in the nature of certiorari futile.

The court found that while an adjudicator's determination could be subject to certiorari, the remedy was not appropriate once judgment had been entered for the adjudicated amount. The court emphasised that certiorari was a discretionary remedy, and the fact that judgment had already been entered meant the remedy would be futile. The court further noted that section 25 of the Act, which provides for immediate enforcement of an adjudicator's determination, supported the view that an order in the nature of certiorari would be futile. The court concluded that while the adjudicator may have erred in law or exceeded their jurisdiction, the remedy of certiorari was not available given the circumstances of the case.

The court's decision effectively denied Brodyn Pty Ltd the sought-after remedy of certiorari. The court held that the adjudicator's determination was still valid and enforceable, despite any perceived errors in law or jurisdiction. The final orders of the court dismissed Brodyn Pty Ltd's application for judicial review and affirmed the adjudicator's determination as binding and enforceable.

Orders