Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Brolton Group Pty Ltd v Hanson Construction Materials Pty Ltd [2020] NSWCA 63 Hearing dates: 20 March 2020 Date of orders: 17 April 2020 Decision date: 17 April 2020 Before: Meagher JA at [1]
Gleeson JA at [2]
Payne JA at [73]Decision: (1) Appeal dismissed.
(2) Appellant pay the respondents’ costs of the appeal.Catchwords: BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 9, 10, 13, 14, 17, 20, 22
Uniform Civil Procedure Rules 2005 (NSW), r 42.1Cases Cited: Barclay Mowlem Construction Ltd v Estate Property Holdings Pty Ltd [2004] NSWSC 649
Brodyn Pty Ltd (T/as Time Cost and Quality) v Davenport (2004) 61 NSWLR 421; [2004] NSWCA 394
Houssain v Minister for Immigration & Border Protection (2018) 264 CLR 123; [2018] HCA 34
Icon Co (NSW) Pty Ltd v Australia Avenue Developments Pty Ltd [2018] NSWCA 339
Leighton Contractors Pty Ltd v Campbelltown Catholic Club Ltd [2003] NSWSC 1103
Metwally v University of Wollongong (1985) 59 ALJR 481
Paynter Dixon Constructions Pty Ltd v JF & CG Tilston Pty Ltd [2003] NSWSC 869
Pinnacle Construction Pty Ltd v Dimension Joinery Pty Ltd [2018] NSWSC 894
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Quasar Constructions NSW Pty Ltd v Demtech Pty Ltd [2004] NSWSC 116; (2004) 20 BCL 276
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
The Trustee for Allway Unit Trust (t-as Westside Mechanical Contracting Pty Ltd) v R & D Airconditioning Pty Ltd [2018] SASC 46
Walter Construction Group Pty Ltd v CPL (Surry Hills) Pty Ltd [2003] NSWSC 266
Watpac Constructions v Austin Corp [2010] NSWSC 168Category: Principal judgment Parties: Brolton Group Pty Ltd (Appellant)
Hanson Construction Materials Pty Ltd (First respondent)
Edward Smithies (Second respondent)Representation: Counsel:
Solicitors:
G Sirtes SC / D Byrne (Appellant)
N J Kidd SC / B Le Plastrier (Respondents)
HWL Ebsworth Lawyers (Appellant)
King & Wood Mallesons (First respondent)
Edward Smithies (Second respondent)
File Number(s): 2019/396338 Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division
- Citation:
- [2019] NSWSC 1641
- Date of Decision:
- 26 November 2019
- Before:
- Ball J
- File Number(s):
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- Case
- [2020] NSWCA 63
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two primary legal issues. First, whether the adjudicator had committed a jurisdictional error by failing to consider the correct reference date stipulated by the construction contract, instead purporting to act by reference to an unavailable reference date. Second, the Court considered whether this alleged error, if established, also constituted a denial of natural justice to Brolton Group.
The Court of Appeal dismissed the appeal, finding that the adjudicator had not made a jurisdictional error. Their Honours reasoned that the adjudicator had correctly identified the relevant reference date under the contract and had not based their determination on an unavailable reference date as alleged by Brolton Group. Consequently, the Court concluded that there was no denial of natural justice.
Accordingly, the appeal was dismissed, and Brolton Group Pty Ltd was ordered to pay the respondents’ costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant pay the respondents’ costs of the appeal.
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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